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October 14, 2020

Salaries of undercover police officers not subject to disclosure pursuant to the Freedom of Information Law

§89[3][a] of the New York State (Public Officers Law)*, The Freedom of Information Law [FOIL], provides that "[n]othing in [the statute] shall be construed to require any entity to prepare any record not possessed or maintained by such entity."

In this CPLR Article 78 action the Empire Center for Public Policy [Empire] challenged the denial of its FOIL request seeking the aggregate gross salary of all individuals not included in the NYC Open Data Citywide Payroll Database for fiscal year 2017.

The Supreme Court's decision indicating that the information sought by Empire would include the salaries of "undercover police officers, whether aggregated or individualized," denied Empire's petition request for individualized salary information as to such individuals and Empire appealed.

The Appellate Division unanimously modified, on the law, part of the Supreme Court's order, vacating that part of the order requiring the disclose aggregate salary information, and otherwise affirmed the Supreme Court's ruling, indicating that:

1. Such information is exempt from disclosure under FOIL's public safety exemption;

2. The respondent, the New York City Office of Payroll Administration, met its burden of making a particularized showing that publicly releasing this information would create "a possibility of endangerment" to the public's safety; and

3. The New York City Office of Payroll Administration is not obligated to compile "aggregate data" "from the documents or records in its possession"** (See Matter of Reubens v Murray, 194 AD2d 492).

The Appellate Division opined that in the analysis of Empire's request not only the instant FOIL request for information as to fiscal year 2017 is to be considered but also future requests which could be made for equivalent information as to other years. Citing Matter of Grabell v New York City Police Dept., 139 AD3d 477, the court said that such information would allow members of the public to estimate the increases or decreases in the overall number of undercover officers, which could "undermine their deterrent effect, hamper NYPD's counterterrorism operations, and increase the likelihood of another terrorist attack." The New York City Office of Payroll Administration's past disclosure of salary and other information as to certain public employees not employed by NYPD is not dispositive.

* Public Officers Law §89[3][a], with exceptions not raised in this action.

** See Matter of Reubens v Murray, 194 AD2d 492.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05449.htm

 

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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.
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