April 20, 2017

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]
New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506, Appellate Division, First Department

The basic rule when seeking public records pursuant to a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, where access to the records sought is not barred by law in the first instance, the custodian of the record or records sought 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 FOIL.

In this action brought pursuant to FOIL Supreme Court granted the New York Civil Liberties Union's [NYCLU] petition compelling the New York City Police Department to disclose certain records concerning disciplinary actions taken against Department police officers.

The Appellate Division unanimously reversed the lower court's action, on the law, denying the Civil Union's petition and dismissing the action.

Noting that Public Officers Law §87(2)(a) provides that an agency "may deny access to records" that "are specifically exempted from disclosure by state . . . statute," the Appellate Division said that the NYPD disciplinary decisions sought by NYCLU fell within Civil Rights Law §50-a, which makes confidential police "personnel records used to evaluate performance toward continued employment or promotion."*

Although NYPD disciplinary trials are open to the public, the Appellate Division said that this "does not remove the resulting decisions from the protective cloak of Civil Rights Law §50-a." The court explained that "[w]hether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations." In addition, said the court, "the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed" [if the officer is found guilty of one or more of the disciplinary charges and specifications], "neither of which is disclosed at the public trial."

In Short v Board of Mgrs. of Nassau County Medical Center, 57 NY2d 399, the Court of Appeals ruled that where there is a "specific exemption from disclosure by State . . . statute," an agency is not required to disclose records with identifying details redacted.  Concluding that Short was the controlling precedent in this action, the Appellate Division held that in view of the provision set out in Civil Rights Law §50-a,  it could not order NYPD to disclose redacted versions of the disciplinary decisions sought by the NYCLU.

* The release of certain public records, such as those identified in Civil Rights Law §50-a, is limited by statute. Other examples of such limitations are set out in Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. Submitting a "formal" FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file the FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The decision is posted on the Internet at: