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FOIL-AO-16792

 

                                                                                                September 20, 2007

 

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, unless otherwise indicated.

Dear Mr. Kametler:

            I have received your letter in which you requested an advisory opinion concerning the disclosure of a police officer’s personnel records, those pertaining to you, in 2004 by the Westhampton Beach Village Clerk without having received either a court order or your consent.  You have contended that disclosure of the records constituted a violation of the Civil Rights Law, §50-a.

            Having contacted the Village to obtain additional information, I was informed that you retired from your position as a police officer in 2003.  That being so, I do not believe that §50-a would have applied or, therefore, that it would have served as a bar to disclosure.

            In this regard, §50-a of the Civil Rights Law 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 was inapplicable in the situation to which you referred.

            I hope that the foregoing serves to clarify your understanding of the matter and that I have been of assistance.

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc: Kathleen McGinnis, Clerk