April 23, 2019

A police officer's personnel records are exempt from disclosure pursuant to the Freedom of Information Law during and after he or she leaves public service


Public Officers Law §87[2][a]) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

The custodian of the relevent records denied Plaintiff's New York State's Freedom of Information Law [FOIL request for documents concerning complaints filed concerning a retired New York City police officer [Detective], together with reports of the outcome of any investigations into such complaints. Plaintiff had sought such records on the theory that such records were not, or were no longer, "personnel records used to evaluate performance toward continued employment or promotion" of police officers, firefighters and correction officers.*

Arguing that Civil Rights Law §50-a(1) was inapplicable because [1] the police officer was now retired and [2] the requested records are not "personnel records" because the custodian of the records was employed by an agency independent from the former Detective's employer, Plaintiff challenged the custodian's decision by initiating a CPLR Article 78 action seeking a court order to compel production of any such records. Supreme Court, in effect, denied the petition and dismissed the proceeding and Plaintiff appealed the Supreme Court's ruling.

The Appellate Division disagreed with Plaintiff's contention that Civil Rights Law §50-a(1) does not apply to the records demanded held by the custodian, explaining:

1. An agency "may deny access" to records that "are specifically exempted from disclosure by state or federal statute."

2. Civil Rights Law §50-a(1) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

3. In Matter of Prisoners' Legal Services of New York v New York State Dept. of Correctional Servs., 73 NY2d 26, the Court of Appeals held "whether a document qualifies as a personnel record under Civil Rights Law §50-a(1) depends upon its nature and its use in evaluating an officer's performance — not its physical location or its particular custodian."

The Appellate Division then observed that records of civilian complaints, "regardless of where they are kept," could be used to harass or embarrass police officers, which is exactly what Civil Rights Law §50-a was intended to prevent and the Court of Appeals has recently held that disciplinary records arising from civilian complaints against police officers are the very sort of record presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law §50-a.**

Focusing on the application of these provisions to "former police officers," the court said it agreed with ruling by the Appellate Division, Third Department, in Matter of Columbia-Greene Beauty Sch., Inc. v City of Albany, 121 AD3d 1369 that "a police officer's personnel records continue to be exempt from disclosure after he or she departs from public service."

Rejecting Plaintiff's contention that the potential for personnel records to be used to embarrass or harass police officers during litigation ceases to exist after their retirement, the Appellate Division opined that "[a] retired police officer might 'still [be] involved in an open or pending case' and ... in that context, the requested documents have the potential to be used to degrade, harass, embarrass or impeach his [or her] integrity." Indeed, observed the court, Detective "has been called to testify numerous times since his retirement."

Holding that the custodian of the records met its burden of showing "a substantial and realistic potential for the abusive use of the requested material against [Detective]," the Appellate Division sustained the lower court's ruling denying access to the records demanded by Plaintiff.

* Civil Rights Law §50-a.1.


The decision is posted on the Internet at:

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