Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law
Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 2019 NY Slip Op 01170, Appellate Division, First Department
Pursuant to New York State's Civil Rights Law §50-a, the personnel records of sworn police officers used to evaluate performance with respect to an officer's continued employment or promotion "shall be considered confidential and not subject to inspection or review without the express written consent of the police officer except as may be mandated by lawful court order."*
The Patrolman's Association of the City of
[PBA] challenged New York 's [City] public release of police department body-worn-camera footage without a court order or the relevant officer's consent. Supreme Court denied the PBA's motion for a preliminary injunction on the grounds that the PBA "could not maintain this hybrid action because there is no private right of action under Civil Rights Law §50-a." New York City
PBA appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the result of the lower court's decision, the release of the camera footage to the public could not be suppressed, but for a significantly different reason.
The Appellate Division agreed that although §50-a does not provide a private right of action, this does not serve to preclude review of the PBA's request for injunctive relief in an Article 78 proceeding "because the statute creates protected rights (for police officers) and does not explicitly prohibit a private right of action or otherwise manifest a clear legislative intent to negate review." However, said the court, PBA's petition must be denied because body-worn-camera footage at issue does not constitute a personnel record within the meaning of §50-a.
The Appellate Division explained that in order to determine whether something is a "personnel record" within the meaning of §50-a of the Civil Rights Law, the threshold question is to determine whether the documents are "of significance to a superior in considering continued employment or promotion." In this instance the court decided that "given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a" but rather satisfies other key objectives of a body camera program such as "transparency, accountability, and public trust-building."
Citing Matter of Prisoners' Legal Servs., 73 NY2d 26, the Appellate Division noted that the Court of Appeals has held that, in the context of a FOIL disclosure of an officer's personnel records, preventing such disclosure requires more than merely demonstrating that the document "may be used" to evaluate performance.
Rejecting the PBA's argument that "the body-worn-camera was designed in part for performance evaluation purposes and is clearly 'of significance' to superiors in considering employment or promotion" and a finding that body camera footage "is not a personnel record" would result in an unprecedented invasion of privacy, the Appellate Division explained that "given its nature and use," the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a. The footage here, said the court, is more in the nature of an arrest or stop report, "not records primarily generated for disciplinary and promotional purposes."
In the words of the Appellate Division, "[a]lthough the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes."
* The provisions of Civil Rights Law §50-a also extend to a sworn officer in a sheriff's department, a firefighter, a firefighter/paramedic, a correction officer or peace officer serving with a department of corrections and community supervision or a probation department except as may be mandated by lawful court order.
The decision is posted on the Internet at: