Until 2020, disciplinary records of law enforcement officers were categorically exempted from the public disclosure requirements of the Freedom of Information Law [FOIL] by statute. As observed by the New York State Court of Appeals in its opinion in New York Civil Liberties Union v City of Rochester et al., "in response to the national outcry over the killing of George Floyd, and rising public concern that law enforcement agencies were not appropriately handling allegations of officer misconduct, the New York State Legislature repealed Civil Rights Law §50-a and amended FOIL to specifically address the disclosure of law enforcement disciplinary records.*
Shortly after the 2020 amendments went into effect, the New York Civil Liberties Union initiated the instant litigation in which the question to be addressed was whether FOIL's personal privacy exemption, which was left intact by the 2020 amendments, provided a basis for appointing authorities to categorically withhold all disciplinary records relating to complaints against law enforcement officers that were not deemed substantiated**.
The Court of Appeals response: "The answer is no."
Earlier the Appellate Division held that the personal privacy exemption did not authorize the City of Rochester [City] to categorically withhold all such records and, instead, directed the City to review the requested records and determine whether there is a particularized and specific justification to redact or withhold each record on personal privacy grounds".
In response to City's appeal of the Appellate Division's decision, the Court of Appeals affirmed the Appellate Division's ruling, opining that "To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public".
In the words of the Court of Appeals: "The statute is based on the principle that 'the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government'". The Court of Appeals further observed that pursuant to FOIL, "[a]ll records are presumptively available for public inspection and copying, unless the agency satisfies its burden of demonstrating that the material requested falls squarely within the ambit of one of [the] statutory exemptions," which statutory exemption must be "narrowly interpreted".
Observing that FOIL's personal privacy exemption permits an agency to withhold from the public access any record that "if disclosed would constitute an unwarranted invasion of personal privacy" and "FOIL, as amended in conjunction with the repeal of Civil Rights Law §50-a, does not deny law enforcement officers the benefit of this exemption", the Court of Appeals said that the Appellate Division correctly concluded — consistent with uniform appellate precedent — that there is no categorical or blanket personal privacy exemption for records relating to complaints against law enforcement officers that are not deemed substantiated".
In contrast to withholding all such records, the Court of Appeals said "Public Officers Law §87(2) requires an agency to evaluate each record individually and determine whether 'a particularized and specific justification' exists for denying access on the ground that disclosing all or part of the record would constitute an unwarranted invasion of privacy" and observed that the Appellate Division's ruling indicating that in the event "redactions would prevent such an invasion and can be made without unreasonable difficulty, the agency must disclose the record with those necessary redactions."
* See Chapter 96 of the Laws of 2020.
** FOIL does not define or use the term "substantiated." For purposes of this appeal, the Court of Appeals deemed substantiated to mean supported by "sufficient credible evidence to believe that the subject officer committed the alleged act without legal justification".
Click HERE to access the Court of Appeals' decision posted on the Internet.