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FOIL-AO-18168

                                                                                                June 25, 2010

 

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


            We have received your e-mail dated June 6 in which you requested an advisory opinion regarding application of the Freedom of Information Law, particularly, in relation to a request for records of the Town of New Hartford. As we understand the matter, the records involve allegations of “misdeeds” on the part of former New Hartford police officers.

            In this regard, as you are 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 (k) of the Law. The initial ground for denial, §87(2)(a), pertains to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is §50-a of the Civil Rights Law, which 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 the 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, Fourth Department, 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. To be fair, however, the Appellate Division, Third Department, found that certain records, including those pertaining to “current or former police officers”, were shielded by §50-a [Capital Newspapers v. City of Albany, 63 A.D.3d 1336, 881 N.Y.S.2d 214, 220 (2009)]. That being so, there is a conflict in the holdings of appellate courts. That case was recently argued before the Court of Appeals. Whether the issue of application of §50-a to former police officers will be considered in its decision is, at this juncture, unknown.

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

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:KC:jm

cc:  Town Board
Hon. Patrick Tyksinski, Supervisor