In a proceeding pursuant to CPLR Article 78 initiated by the Petitioner to compel disclosure of certain documents pursuant to the Freedom of Information Law [FOIL], Public Officers Law Article 6, and for an award of attorneys' fees and litigation costs, the Suffolk County Police Department [Department] appealed a Supreme Court order requiring the Department to provide Petitioner with certain law enforcement disciplinary records* and 911-call records, subject to any authorized redactions or exemptions. The Appellate Division affirmed the Supreme Court's ruling, with costs.
The Department had denied or granted with
redactions, in whole or in part, Petitioner's FOIL requests. The Department's
denials and redactions were claimed, for the most part, to involve allegations
of police officer misconduct that were classified as
"unsubstantiated," "unfounded," or "exonerated."
The Department also denied or redacted records concerning complaints of police officer misconduct under color of Public Officers Law §87(2)(b), which the Department contended would "constitute unwarranted invasions of personal privacy".** The Department's rejections of Petitioner's FOIL requests were, for the most part, sustained by the Department on administrative appeal.
Citing Matter of Lane v County of Nassau, 221 AD3d 1008 among
other decisions, the Appellate Division opined "'FOIL proceeds under the
premise that the public is vested with an inherent right to know and that
official secrecy is anathematic to our form of government" and "FOIL
... imposes a broad duty on government agencies to make their records available
to the public." Thus "[a]ll government records are thus presumptively
open for public inspection and copying unless they fall within one of the
enumerated exemptions of Public Officers Law §87(2)" [see Matter of Tuckahoe Common Sch. Dist. v Town of Southampton,
179 AD3d 929 and Matter of Lepper v Village of Babylon, 190 AD3d 738].
With respect to the application of Public
Officers Law §87(2)(b) and (f), the Appellate Division said these exemptions
provide, respectively, an exemption from disclosure for records or portions of
records that, if disclosed, would [1] constitute an unwarranted invasion of
personal privacy or [2] could endanger the life or safety of any person.
Accordingly, said the court, "... consistent with the policy of broad
public access, the exemptions are to be narrowly construed, and the burden
rests on the agency to demonstrate that the requested material qualifies for
exemption".
With respect to the withheld records of "unsubstantiated,
unfounded, or exonerated allegations of misconduct", such records "were
not categorically exempt from disclosure" as "[T]here is no
categorical exemption from disclosure for unsubstantiated allegations or
complaints of police misconduct." Further, opined the Appellate Division, "Upon
repealing Civil Rights Law § 50-a, the Legislature amended the Public Officers
Law to specifically contemplate the disclosure of '[l]aw enforcement
disciplinary records,' which it defines to include 'complaints, allegations,
and charges against an employee'". Thus "disclosure of the withheld
records of unsubstantiated, unfounded, or exonerated allegations of misconduct
was required unless those records "'[fell] squarely within the ambit of
one of [the] statutory exemptions [under Public Officers Law §87(2)]'".
and the party seeking exemption "must present specific, persuasive
evidence that the material falls within the exemption" and "[c]onclusory
assertions that certain records fall within a statutory exemption are not
sufficient; evidentiary support is needed".
As Department failed to demonstrate that the
withheld records of unsubstantiated, unfounded, or exonerated allegations of
misconduct fell squarely within the personal privacy exemption or the life and
safety exemption the Appellate Division concluded that "Supreme Court
properly directed the Department] to disclose the subject records of
unsubstantiated, unfounded, or exonerated allegations of misconduct, subject to
any authorized redactions or exemptions."
Addressing the Department's contention that
its law enforcement disciplinary files created prior to June 12, 2020 are not
subject to FOIL disclosure because the repeal of Civil Rights Law §50-a "is
not retroactive", the Appellate Division opined that this "was not a
ground invoked by [the Department] in denying [Petitioner's] FOIL requests and,
therefore, is not properly before the court.
* Law enforcement disciplinary records and records relating
to allegations of police officer misconduct.
** Records were also withheld or redacted to eliminate
references to, and identifying information of, nonpolice individuals and
records of 911 calls were redacted completely or withheld by the Department
under color of Suffolk County Law §308(4).
Click HERE to access the Appellate Division's decision
posted on the Internet.