In this CPLR Article 78 to compel the production of records
pursuant to the Freedom of Information Law (Public Officers Law Article 6), Petitioner
appealed Supreme Court's judgment that denied that branch of the petition
seeking the production of certain records
it sought and dismissed that portion of the proceeding. The Appellate Division reversed
the Supreme Court's ruling "insofar as appealed from, on the law,"
with costs, and granted that branch of the petition, which was to compel the
production of certain records.
The Police Department had withheld all disciplinary records
created prior to June 12, 2020, the date of the repeal of Civil Rights Law §50-a
(see L 2020, ch 96, §§ 1-4 [eff June 12, 2020]), and all records related
to unsubstantiated allegations of misconduct contending that "disciplinary
records related to substantiated allegations of misconduct created on or after
June 12, 2020, were not required to be released pursuant to Public Officers Law
§87(2)(b)".
Plaintiff administratively appealed the denial of its FOIL
request. Respondent [Town Board] granted the appeal insofar as the Plaintiff 's
FOIL request sought disciplinary records created after the repeal of Civil
Rights Law §50-a and directed the Respondent Town Police Department to disclose
records of unsubstantiated allegations of misconduct to the extent that those
allegations were not otherwise exempt from disclosure pursuant to the
provisions of FOIL, noting that Petitioner's FOIL request did not reasonably
describe the records requested as required by Public Officers Law §89(3)(a).
Plaintiff then commenced a CPLR Article 78 proceeding to
compel the production of all records responsive to its FOIL request. Supreme
Court denied the petition and dismissed the proceeding, concluding that the
repeal of Civil Rights Law §50-a did not require the Police Department to
produce law enforcement disciplinary records created prior to June 12, 2020,
and that the Town Board's determination to deny the disclosure of records of
unsubstantiated allegations of misconduct was reasonable on the ground that
they were exempt from disclosure pursuant to Public Officers Law §87(2)(b),
notwithstanding the repeal of Civil Rights Law §50-a.
The Appellate Division, noting that "To promote open
government and public accountability, . . . FOIL imposes a broad duty on
government to make its records available to the public", citing Gould v
New York City Police Dept., 89 NY2d 267., said FOIL provides that, "unless
otherwise specifically exempted, all records of a public agency are
presumptively open to public inspection and copying".
As the limited
categories of records which may be withheld are enumerated in FOIL, the
exemptions are to be narrowly construed and "the burden rests on the
agency to demonstrate that the requested material qualifies for exemption".
Citing Luongo v Records Access Officer, 161 AD3d at 1080, the Appellate
Division opined that "[t]he standard of review in a CPLR article 78
proceeding challenging an agency's denial of a FOIL request is much more
stringent than the lenient standard generally applicable to CPLR article 78
review of agency actions".
While the Police Department denied Plaintiff's request for
records of unsubstantiated allegations of misconduct, relying, in part on the
privacy exemption, the Appellate Division noted that FOIL provides "a
nonexclusive list of categories of information that would constitute an
unwarranted invasion of personal privacy if disclosed". Further, said the
court, "Where an asserted privacy interest is not enumerated,
applicability of the exemption is determined by balancing the privacy interests
at stake against the public interest in the disclosure of the information"
noting that the privacy exemption also supplies statutory authority for certain
redactions, citing Public Officers Law §89[2][a]), and it "directs that
"disclosure shall not be construed to constitute an unwarranted invasion
of personal privacy" when, among other possibilities, identifying details
are deleted."
Explaining that the Supreme Court erred in concluding that
the privacy exemption under Public Officers Law §87(2)(b) creates a blanket
exemption allowing the custodian to withhold the disciplinary records of
unsubstantiated allegations and did not articulate any particularized and
specific justification for withholding any of the records, the Police
Department "did not meet [it's] burden of establishing that the privacy
exemption applies. Further, observed the Appellate Division, the Police
Department failed to establish that "identifying details" in the
records containing unsubstantiated allegations or complaints of misconduct
"could not be redacted so as to not constitute an unwarranted invasion of
personal privacy", citing Matter of Aron Law, PLLC v New York City Fire
Dept., 191 AD3d 664 at 666).
As to Respondents' contention that the repeal of Civil Rights
Law §50-a is not retroactive and that all law enforcement disciplinary records
created prior to June 12, 2020, are not subject to FOIL disclosure, effective
June 12, 2020, the Appellate Division opined that the New York State Legislature repealed Civil Rights Law §50-a
and amended the Public Officers Law to make specific provisions relating to the
disclosure of law enforcement disciplinary records and the types of redactions
to be made thereto prior to disclosure. Accordingly the statutory exemption
under Public Officers Law §87(2)(a) no longer applies to law enforcement
personnel records.
The Court also noted that the bill repealing Civil Rights
Law §50-a also made several amendments to FOIL concerning disciplinary records
of law enforcement agencies, citing the Laws of 2020, Chapter 96, §§ 2-4,
calling attention to Public Officers Law §86 which was amended by adding
subdivisions (6) and (7), defining "[l]aw enforcement disciplinary
records" and a "[l]aw enforcement disciplinary proceeding."
In
addition, the Appellate Division rejected the Respondents' contention that in
amending the Public Officers Law to provide for the disclosure of records
relating to law enforcement disciplinary proceedings, the Legislature intended
to exclude from disclosure any law enforcement disciplinary records that were
created prior to June 12, 2020.
The Appellate Division concluded that Supreme Court should
have granted that branch of the petition which was to compel the production of
the records sought in the Plaintiff's FOIL request.
Click HERE to access the Appellate Division's
decision posted on the Internet.