May 14, 2019

Releasing the body camera footage recorded by equipment worn by a police officer


§50-a of the New York State Civil Rights Law addresses the release of personnel  records  of  police  officers,  firefighters  correction  officers and incumbents of certain other positions "used   to   evaluate   performance  toward continued employment or promotion," which are considered confidential and which are not subject to inspection or review without the express prior written consent of the individual "except as may be mandated by lawful court order."

The Patrolmen's Benevolent Association of the City of New York [PBA] challenge New York City's public release of police department body-worn-camera footage without a court order or the relevant officers' consent claiming such release was subject to the mandates of Civil Rights Law §50-a. Supreme Court denied the PBA's petition, ruling that the PBA could not maintain the hybrid action "because there is no private right of action under Civil Rights Law §50-a" and granted New York City's cross motion to dismiss the PBA's petition.

PBA appealed the Supreme Court's ruling, which was subsequently unanimously affirmed by the Appellate Division but on grounds that differed significantly from those articulated by the lower court in its opinion.

The Appellate Division held that although §50-a "does not provide a private right of action" this does not preclude a review of 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."

That said, the Appellate Division proceeded to deny the PBA's petition, explaining that the key element was whether the " body-worn-camera footage" constitute a "personnel record" within the meaning of under Civil Rights Law §50-a which sets the "threshold criterion" as whether the documents (or a summary of the documents) are "of significance to a superior in considering continued employment or promotion."

Noting that the Court of Appeals in Matter of Prisoners' Legal Services, 73 NY2d at 32 indicated that whether a document "containing personal, employment-related information about a public employee," that is under the control of the agency, and "relied upon in evaluating the employee's performance" is covered by Civil Rights Law §50-a "depends upon its nature and use in evaluating an officer's performance." Further, said the Appellate Division, in Daily Gazette Co. v City of Schenectady, 93 NY2d 145, the Court of Appeals 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.

PBA had argued 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 that the court's holding that body-worn camera footage is not a personnel record "would result in an unprecedented invasion of privacy."

Recognizing PBA "valid concerns about invasion of privacy and threats to the safety of police officers," the Appellate Division, considering the record's general "nature and use," and not solely whether it may be contemplated for use in a performance evaluation, found 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." 

In the words of the court, were body-camera footage deemed a "personnel record" within the meaning §50-a, it could sweep into the purview of §50-a many police records that are an expected or required part of investigations or performance evaluations, such as arrest reports, stop reports, summonses, and accident reports, which clearly are not in the nature of personnel records so as to be covered by §50-a."

The court concluded that "given its nature and use," the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes but is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. "To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability."

The decision is posted on the Internet at:

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