Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand

Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand
Daily Gazette Co. and Capital Newspapers [Times Union] v City of Schenectady, 93 NY2d 145

The Court of Appeals has resolved a significant question in ruling that the City of Schenectady did not violate the state Freedom of Information Law (FOIL) when it declined to provide journalists with the names of certain police officers who were involved in an off-duty egg-throwing incident. The court ruled that prohibitions on disclosure of personnel records of public safety officers under Section 50-a of the state Civil Rights Law outweighed both the “plain wording” of FOIL and the legislative intent behind FOIL.

Section 50-a, in pertinent part, provides that all personnel records used to evaluate performance toward continued employment or promotion of police officers, correction officers or firefighters “shall be considered confidential and not subject to inspection or review without the express written consent of such [officers] except as may be mandated by lawful court order.” Such a court order is to be issued only after an in camera [private] inspection by the court and after giving the parties affected notice of the demand and an opportunity to be heard.

Both the Albany Times-Union and the Daily Gazette of Schenectady had asked, pursuant to FOIL (Public Officers Law [POL] Sections 84-90), for the records of the disciplinary action taken against 18 officers. The newspapers wanted the names of the officers who allegedly pelted civilian cars from a bus that was used as transportation for a police officer’s bachelor party. According to news reports, the bus stops included bars and a nude dance club.

Schenectady’s chief of police said that “under a promise of confidentiality,” the 18 officers had admitted their participation in the incident in various degrees, and that disciplinary sanctions imposed ranged from written reprimands to loss of vacation days and overtime pay. The chief refused to provide the newspapers with the names of the officers, citing the FOIL exception for certain records; i.e., records “specifically exempted from disclosure by state or federal statute” (POL Section 87[2][a]).

Newspapers sued under FOIL, but a state Supreme Court justice declined to order Schenectady to provide the information.

The Appellate Division reversed that decision, concluding that the records of the disciplinary actions taken against the 18 officers were not exempt from FOIL disclosure under Civil Rights Law Section 50-a. The city appealed and won a reversal of that ruling by the Court of Appeals, New York’s highest court.

The court observed that Civil Rights Law Section 50-a conflicts with the “plain wording” of Freedom of Information Law, and that the limit that Section 50-a places on disclosure “is contrary to its legislative history and is inconsistent with our FOIL precedents.”

Nevertheless, the Court of Appeals pointed out that the statute “was designed to prevent abusive exploitation of personally damaging information” contained in personnel records of law enforcement personnel. Otherwise criminal defense attorneys could always delve into the personnel records of officers to find information to impeach the credibility of police witnesses. FOIL applications by criminal defense attorneys can be used as a means for “harassment and reprisals and for the purposes of cross-examination,” the court said, citing Matter of Prisoners’ Legal Services, 73 NY2d, at page 31.

In making its ruling, the court set out the following test to determine if the refusal to disclose records under the FOIL exception is justified:

In evaluating denying a FOIL request for access to a law enforcement officer’s personnel records that are relevant to promotion or continued employment, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law Section 50-a -- to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer.

In the Schenectady case, the individuals seeking information were journalists, not lawyers. However, “confidentiality under Civil Rights Law Section 50-a will not automatically be defeated solely because the person seeking access is a representative of a news-gathering organization, not contemplating litigation....” the court said.

The court appeared concerned that there was “potential abusive exploitation of the damaging information in personnel records exists irrespective of how, at whose behest or for what purpose the information is released into the public domain.”

In this instance, said the court, if the newspapers were to obtain and publish the identities, misconduct and disciplinary sanctions of the 18 Schenectady police officers involved in the incident, “the information will be fully available for all of the forms and practices of abusive exploitation that Civil Rights Law Section 50-a was designed to suppress.”

Noting that the employer has the burden of demonstrating that its rejection of a FOIL demand falls within the permissible exceptions set out in FOIL, the Court of Appeals said that it is not sufficient merely to show that the recorded data may be “used to evaluate performance toward continued employment or promotion” of the officers” in rejecting a FOIL demand.
NYPPL