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Thursday, November 03, 2011

Filing a FOIL request for personnel records


Feerick v Safir, App. Div., 297 AD2d 212 

The basic rule when considering a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, the custodian of the records may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

When it comes to FOIL requests concerning personnel records, typically the individual objects to their release. The Feerick case involved a variation concerning FOIL requests for personnel records -- Patricia Feerick submitted a FOIL request to her employer, the New York City Police Department, seeking material contained in her own personnel records. The Department rejected her FOIL request.

Feerick was one of four New York City police officers seeking information concerning an internal police investigation directly related to their involvement in efforts to recover stolen property from suspected drug dealers. The Department's reason for refusing her FOIL request: the information she sought constituted confidential police records and thus fell under one of the exclusion provisions set out in law.

Feerick filed an Article 78 petition seeking disclosure of her personnel records related to the matter. Supreme Court, agreeing with the Department, dismissed her petition. The Appellate Division, however, reversed and ordered the Department to give Feerick the records she had requested under FOIL.

The Appellate Division noted that Public Officers Law §87(2) allows the denial of a FOIL request if the information sought (1) is specifically exempted from disclosure by statute; (2) amounts to an unwarranted invasion of privacy; or (3) interferes with an ongoing law enforcement investigation or judicial proceeding.

At the time that Feerick submitted her FOIL request, said the court, the only tenable basis for the Department to exercise its discretion and not release her personnel records to her was that the information sought amounted to an "unwarranted invasion of privacy." It was conceded that the information demanded constituted confidential personnel records and thus fell under one of the available exclusions to FOIL. However, said the court, the records demanded by Feerick are her own records in contrast to such records being demanded by a third party.

Noting that the privacy exception is for the protection of individuals named in the documents rather that the public entity holding or creating the records, the court decided that any privacy issues raised by the Department were irrelevant as the information demanded directly concerned the individual submitting the FOIL request.

A public entity must be reasonable when deciding whether or not to release information that falls under one of the limited exclusions available to it when denying a FOIL request. In exercising its discretion as to whether to release documents, the custodian must be guided by the public policy underlying FOIL: all governmental records are available to the public and the denial of a FOIL request is the exception to this general rule.


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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