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FOIL-AO-15991

May 31, 2006

E-Mail

TO:

FROM: Camille S. Jobin-Davis, Assistant Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

We are in receipt of your request for an advisory opinion concerning application of the Freedom of Information Law to a request made for the personnel file of a former police officer, who, after being convicted of a felony, is now incarcerated. In this regard, we offer the following comments.

As you may be aware, a key issue involves the application of §50-a of the Civil Rights Law. That statute provides, in brief, that personnel records pertaining to police and correction officers that are "used to evaluate performance toward continued employment or promotion" are confidential; those records cannot be disclosed absent the consent of the officer who is the subject of the records or a court order.

In consideration of its legislative history and intent, it has been advised that §50-a does not apply when the subject of a record is no longer employed as a police officer. Several courts, including the Court of Appeals, have provided direction concerning its application. Specifically, in considering the legislative history leading to its enactment, the Court of Appeals found that §50-a "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination"[Capital Newspapers v. Burns, 67 NY2d 562, 568 (1986)]. In another decision, which dealt with unsubstantiated complaints against correction officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of sensitive personnel records that could be used in litigation for purposes of harassing or embarrassing correction officers" [Prisoners' Legal Services v. NYS Department of Correctional Services, 73 NY 2d 26, 538 NYS 2d 190, 191 (1988)].

In short, if a police officer was involved in an arrest or investigation and is called to testify regarding the arrest or investigation, personnel records relating to an officer’s performance cannot be used to harass or embarrass the officer in the context of that litigation. Again, the bar to disclosure imposed by §50-a deals with personnel records that "are used to evaluate performance toward continued employment or promotion." When a person has retired or is no longer employed as a police officer, there is no issue involving continued employment or promotion. That being so, in our opinion, the rationale for the confidentiality accorded by §50-a is no longer present, and that statute no longer is applicable or pertinent.

Further, in an advisory opinion rendered by the Committee on Open Government, FOIL-AO- 12423, it was opined, for reasons expressed above, that §50-a does not apply when a person no longer is employed as a police officer. In that opinion, it was advised at its start that "I do not believe that §50-a is applicable if an individual is no longer employed as a police officer." The Supreme Court in Village of Brockport v. Calandra made specific reference to that opinion, characterizing the opinion as "instructive" [748 NYS2d 662, 668 (2002)]. While the court did not find a need to focus on that aspect of the opinion specifically, certainly it could have expressed disagreement if it saw fit to do so. The Appellate Division could also have done so, but it chose to unanimously affirm (305 AD2d 1030 (2003)]. We believe that the tacit approval of the advisory opinion suggests agreement with its content.

In short, it is our view that §50-a of the Civil Rights Law is inapplicable and that the Freedom of Information Law governs with respect to access. As you may be aware, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law. It may be that some of the elements of the records would be accessible while others could be withheld.

Although §87(2)(b) of the Freedom of Information Law authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy", the courts have provided substantial direction regarding the privacy of public employees. First, it is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others.

Second, with regard to records pertaining to public employees, the courts have found that, as a general rule, records that are relevant to the performance of a public employee' s official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Also pertinent is §87(2)(g), which authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in our view be withheld.

In consideration of the foregoing, we believe that portions of records involving charges that were sustained against the officer must be disclosed, for they are clearly relevant to the officer’s duties. Additionally, they would constitute an agency’s final determination that would be available under §87(2)(g)(iii).

On the other hand, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action or a finding of misconduct, the records relating to such allegations may, in our view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Similarly, to the extent that charges are dismissed or allegations are found to be without merit, we believe that they may be withheld.

Lastly, the records might identify witnesses or persons other than the officer who has been convicted of a felony. In that circumstance, those portions might properly be denied pursuant to §§87(2)(b) or 89(2)(b) on the ground that disclosure would constitute an unwarranted invasion of personal privacy of those persons, or perhaps pursuant to §87(2)(f). That provision authorizes an agency to withhold records insofar as disclosure could reasonably be expected to "endanger the life or safety of any person." If, however, those persons were identified in a public judicial proceeding or in court records, those grounds for denial would not apply [see Moore v. Santucci, 151 AD2d 677 (1989)].


On behalf of the Committee on Open Government, we hope this is helpful to you.

CSJ:jm