December 22, 1993

 

 

Mr. Brian Donovan
Newsday
235 Pinelawn Road
Melville, NY 11747-4250

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 Mr. Donovan:

I have received your letter of November 19 in which you
requested an advisory opinion "on the releasability of the official
photos that police departments have of their officers."

You wrote that the Nassau County Police Department, as a
matter of policy, releases photos of officers "only when they do
something heroic." It is your contention, however, that the photos
are not confidential personnel records subject to the Civil Rights
Law, §50-a, and that the policy of releasing them "only in
anticipation of a favorable story is an improper policy."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency
records, and §86(4) defines the term "record" expansively to
include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

Based upon the foregoing language, which includes specific
reference to photos, it is clear in my view that materials in which
you are interested constitute "records" subject to rights of
access.

Second, as a general matter, 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.

From my perspective, the only possible basis for withholding
official photos of police officers would involve the rare
circumstance in which an officer is involved in undercover or
similar work and disclosure would place that person in jeopardy.
In that instance, I believe that a photograph could be withheld
under §87(2)(f), which permits an agency to deny access to records
when disclosure "would endanger the life or safety of any person."
In the case of most police officers, however, because they interact
with and are seen by the public in their official capacities or
because their positions do not involve the performance of duties
that would place them in danger if their photographs were
disclosed, I do not believe that §87(2)(f) would serve as valid
basis for that denial.

Third, with respect to a claim that the records are
confidential under §50-a of the Civil Rights Law, the language of
that statute and its judicial interpretation indicate, in my
opinion, that such a contention would be without merit. Section
50-a, which pertains to police officers and certain others, refers
to "personnel records, used to evaluate performance toward
continued employment or promotion" and states that such records are
confidential. In my view, an official photograph could not be
characterized as a record that is used for the purposes specified
in §50-a. If my contention is accurate, §50-a would not constitute
a valid basis for a denial of access.

Moreover, in reviewing the legislative history leading to its
enactment, the Court of Appeals has held that §50-a is not a
statute that exempts records from disclosure when a request is made
under the Freedom of Information Law in a context unrelated to
litigation. More specifically, in a case brought by a newspaper,
it was found that:

"Given this history, the Appellate Division
correctly determined that the legislative
intent underlying the enactment of Civil
Rights Law section 50-a was narrowly specific,
'to prevent time-consuming and perhaps
vexatious investigation into irrelevant
collateral matters in the context of a civil
or criminal action' (Matter of Capital
Newspapers Div. of Hearst Corp. v. Burns, 109
AD 2d 92, 96). In view of the FOIL's
presumption of access, our practice of
construing FOIL exemptions narrowly, and this
legislative history, section 50-a should not
be construed to exempt intervenor's 'Lost Time
Record' from disclosure by the Police
Department in a non-litigation context under
Public Officers section 87(2)(a)" [Capital
Newspapers v. Burns, 67 NY 2d 562, 569
(1986)].

It was also found that the exemption from disclosure conferred by
§50-a of the Civil Rights Law "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" (id. at 568).

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)].

Based upon the foregoing, again, I do not believe that §50-a
of the Civil Rights Law would serve as a basis for denial.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Records Access Officer, Nassau County Police Department