ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

January 24, 2019

Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request


Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request
Luongo v Records Access Appeals Officer, 2019 NY Slip Op 00344, Appellate Division, First Department

The Legal Aid Society, New York, appealed a Supreme Court decision denying its petition to compel the New York City Police Department's Records Access Appeals Officer to disclose documents it had requested pursuant to the Freedom of Information Law [FOIL]* and dismissing the proceeding Legal Aid had brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower courts ruling.

The Appellate Division explained that the New York City Police Department documents at issue contain information used to evaluate a police officer's performance and included such items as the disposition of disciplinary charges brought against the officer.

Further, said the Appellate Division, the records, which contain factual details regarding misconduct allegations and punishments imposed on officers, could contain "material ripe for degrading, embarrassing, harassing or impeaching the integrity of [the] officer[s]," citing New York Civil Liberties Union v New York City Police Department, 2018 NY Slip Op 0842. The court pointed out that the records sought were exempt from disclosure pursuant to Civil Rights Law §50-a.

§50-a.1, which applies to the personnel records of police officers, firefighters and correction officers, provides as follows:

1. All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law and such personnel records under the control of a probation department for individuals defined as peace officers pursuant to subdivision twenty-four of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by lawful court order.

However, it should noted that subdivision 4 of §50.1 of the Civil Rights Law 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."

* Article 6 of the New York State Public Officers Law.


**  §22 of the General Construction Law provides as follows: Gender. Whenever words of the masculine or feminine gender  appear in any law, rule or regulation, unless the sense of the sentence  indicates otherwise, they shall be deemed to refer to both male or  female persons.

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com