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May 31, 2013

The “personal records” exemption from disclosure set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

The “personnel records” exemption set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency
Hearst Corp. v New York State Police, 2013 NY Slip Op 03900, Appellate Division, Third Department

Supreme Court dismissed the Hearst Corporation’s [Hearst] appeal of an administrative decision denying its Freedom of Information [FOIL] request for “all records” maintained by the Division of State Police concerning a former State Trooper. The Division had claimed that the records sought “records were exempt from disclosure under Civil Rights Law §50-a.”

Essentially §50-a.1 provides that the personnel records of police officers, deputy sheriffs, peace officers, firefighters, firefighter/paramedics and correction officers used to evaluate their performance with respect to their continued employment or promotion are confidential and not subject to inspection or review without the express written consent of the individual concerned “except as may be mandated by lawful court order.”*

Addressing the Civil Rights Law §50-a.1 arguments advanced by Hearst in seeking a former State Trooper’s personnel records, the Appellate Division sustained the lower court’s ruling, explaining:

1. Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2);

2. Public Officers Law §87(2)(a) permits an agency to deny access to public records that "are specifically exempted from disclosure by state or federal statute." One such exemption is found in Civil Rights Law §50-a.1** and

3. Such statutory exemptions to disclosure under FOIL must be narrowly construed and the agency opposing disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access."

Considering the Hearst newspaper’s claim that “as a matter of law, Civil Rights Law §50-a does not apply to records related to former officers,” the court said that §50-a.1 exempts from disclosure personnel records "used to evaluate performance toward continued employment or promotion" and so long as a document was used “at any time during the officer's employment” to evaluate the officer for promotion or continued employment, it is exempt from disclosure as a personnel record.

The Appellate Division said that the fact that the individual is a “former officer” does not mean that there is no realistic possibility of abusive use of the records against him in litigation, noting that to hold otherwise “would lead to the illogical result that a document ceases to be a personnel record immediately upon the officer's severance from employment.”

Accordingly, the court concluded that a document that is a personnel record within the meaning of Civil Rights Law §50-a does not depend on whether the officer to whom it relates is a current or former employee of the agency maintaining the record.

* Civil Rights Law §50-a.4 provides that “The provisions of this section shall not apply to any district attorney or his assistants, the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions.

** Other New York State statutes limiting the disclosure of public records include Education Law, §1127 - Confidentiality of records; and §33.13, Mental Hygiene Law - Clinical records; confidentiality].

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_03900.htm

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