Providing a negative employment reference to a prospective employer in retaliation for engaging in a protected activity held to be in violation of New York State's Human Rights Law

In this action the Appellate Division observed that New York State Human Rights Law provides that it is unlawful to retaliate against an employee opposing discriminatory practices.* To establish an unlawful retaliation claim, said the court, an employee [Complainant] must show that "(1) Complainant had engaged in protected activity, (2) Complainant's employer was aware that Complainant participated in such activity, (3) Complainant suffered an adverse employment action because of Complainant's protected activity, and (4) there is a causal connection between the protected activity and the adverse action." Once this initial burden has been met, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions."

The New York State Division of Human Rights [NYSDHR] found that the employer had unlawfully discriminated against the Complainant by providing a negative employment reference to a prospective employer in retaliation for Complainant's engagement in a protected activity in violation of Executive Law §296, awarding the Complainant "compensatory damages in the principal sum of $5,000 for mental anguish, plus interest at the rate of nine percent per year from June 29, 2017, and assessing a civil fine and penalty against the [Employer] in the principal sum of $10,000, plus interest at the rate of nine percent per year from June 29, 2017." Employer appealed the NYSDHR's decision.

The Appellate Division confirmed NYSDHR's ruling and denied Employer's petition and dismissed the appeal on the merits. The court explained that "The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence** in the record," citing Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898. Further, opined the court, "Under a substantial evidence review, courts may not weigh the evidence or reject [the Commissioner's] choice where the evidence is conflicting and room for a choice exists" citing Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69.*** 

Finding that Complainant had made a prima faciecase of unlawful discrimination within the meaning of the State's Human Rights Law, the Appellate Division ruled that "the burden [of going forward] shifted to the Employer to present evidence of a legitimate, independent, and nondiscriminatory reason to support [its agent's] action, and the [employer] failed to do so."

Accordingly, the Appellate Division confirm NYSDHR's determination, finding that the award of compensatory damages for mental anguish was reasonably related to the wrongdoing, supported by substantial evidence, and comparable to other awards for similar injuries. Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness," the Appellate Division said it "perceive no basis for disturbing the civil fine and penalty assessed against the [Employer]." 

* Executive Law §296[1][e]; [7]. 

** "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" [See 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176]. 

*** This case was decided with another case involving the same parties and is posted at http://www.nycourts.gov/reporter/3dseries/2020/2020_04302.htm.

The decision in this appeal is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04303.htm 

Determining the fitness of candidates for appointment to positions in the public service

An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.* As long as the administrative determination is not irrational or arbitrary and capricious, courts typically will not disturb it. ** 

Plaintiff commenced this proceeding pursuant to CPLR Article 78 seeking judicial review of a Civil Service Commission's decision disqualifying him for a position as a police officer. Supreme Court denied Plaintiff's petition and dismissed the proceeding and Plaintiff appealed the court's ruling to the Appellate Division.

Addressing Plaintiff's complaint that the Commission had wrongfully denied his request for disclosure of information pertaining to his disqualification, the Appellate Division opined that the Commission's denial of Plaintiff's request was proper, citing Grossman v McMahon, 261 AD2d 54. In his appeal Grossman had contended that his request certain the background information should have been approved. The Grossman court disagreed, explaining that in a proceeding "of this nature, where disclosure is available only by leave of court pursuant to CPLR 408," Supreme Court has broad discretion in granting or denying disclosure "... although it must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality."*** 

In the instant case the Appellate Division held that the Commission's determination disqualifying the Plaintiff from eligibility for appointment to the position of police officer was neither irrational nor arbitrary and capricious.

Addressing another argument raised by Plaintiff, the Appellate Division said that the Commission's disqualification determination violated neither §296[15] of the Human Rights Law nor §§750[5] or 752 of the Correction Law, citing Little v County of Westchester, 36 AD3d at 617.

Accordingly, the Appellate Division said it agreed with the Supreme Court's determination to deny the Plaintiff's petition and dismissal of the proceeding. 

* See Matter of Rogan v Nassau County Civ. Serv. Commn., 91 AD3d 658. 

** Matter of Verme v Suffolk County Dept. of Civ. Serv., 5 AD3d 498 

*** In Grossman the Appellate Division concluded that "Supreme Court did not abused its considerable discretion in denying disclosure of the background investigation file" Grossman had sought.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04304.htm

AELE announces its online Educational Center

The Americans for Effective Law Enforcement (AELE) has announced the availability of its "Online Educational Center (OEC)." 

Through its OEC, the AELE said it will expand its dedication to providing objective, timely, accurate, legal, scientific, and evidence-based information and operational guidance for the enhancement of the criminal justice community and to reduce potential criminal and civil liability of criminal justice professionals and municipalities. 

This is the location for registering for future AELE webinars, virtual seminars, and virtual and ON-DEMAND programs. 

Educational programs will be added as they are completed. AELE invites checking the site a regular part of your organization's week's activities. 

Check out the AELEOEC at www.aeleoec.org

Clear and convincing evidence held to support a challenged administrative decision

The driver [Plaintiff] of a New York City Transit Authority bus was issued a summons for alleging seriously injuring a  pedestrian walking in a marked crosswalk with the right of way as the result of Plaintiff's failing to exercise due care. A New York State Department of Motor Vehicles [DMV] Administrative Law Judge [ALJ] found clear and convincing evidence was presented in support of the allegation and the DMV's Traffic Violations Bureau Appeal Board affirmed the ALJ's ruling and the penalty imposed: suspension of Plaintiff's driver's license for six months.

Plaintiff initiated a CPLR Article 78 proceeding challenging the DMV's determination. A divided Appellate Division granted Plaintiff's petition, annulled and vacated DMV's determination, and reinstated Plaintiff 's driver's license.* DMV appealed and the Court of Appeals reversed the Appellate Division's decision.

The Court said that the evidence at the administrative hearing included [1] an investigative report from the accident-reconstruction specialist who investigated the incident, [2] a report from a police officer who responded to the scene, and [3] a statement provided by the Plaintiff after the accident.

Noting that the accident-reconstruction specialist testified at the hearing, reiterating his report's conclusion concerning the victim's injuries, the Court of Appeals opined that DMV's determination was supported by substantial evidence in the record  that Plaintiff had caused serious physical injury to a pedestrian as the result of Plaintiff's failing to exercise due care in operating the bus in violation of §1146(c) of New York State's Vehicle and Traffic Law.

The judgment of the Appellate Division was reversed, with costs, Plaintiff's petition denied, and the determination of the New York State Department of Motor Vehicles reinstated.

* See 159 AD3d 607.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03564.htm

Processing Freedom of Information Law requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer"

The New York State Committee on Open Government issued an advisory opinion, FOIL AO 19775, in response to an inquiry concerning a public employer's obligation with respect to responding to requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer, or if the employer is obligated to disclose all complaints against an employee regardless of outcome."

FOIL AO 19775 concludes that "based on [the Committee's] prior analyses of the disclosure requirements relating to disciplinary records of government employees generally, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may in [the Committee's] view be withheld where the agency determines that disclosure would result in an unwarranted invasion of personal privacy. In addition, to the extent that charges are dismissed, or allegations are found to be without merit, [the Committee] believe that those records also may be withheld based on considerations of privacy." 

The full text of FOIL AO 19775 is set out below. 

FOIL AO 19775

By electronic mail only

July 27, 2020

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated. 

Dear: 

I am writing in response to your request for an advisory opinion regarding the obligations of the City of Syracuse (the "City") under the Freedom of Information Law (FOIL) in connection with requests for law enforcement disciplinary records, specifically relating to unsubstantiated and unfounded complaints against a police officer. In your inquiry, you note that Public Officers Law §86(6)(a) defines “law enforcement disciplinary records” to include “complaints, allegations, and charges against an employee.” 

You ask whether “an employer of a law enforcement employee could lawfully withhold unsubstantiated and unfounded complaints against an officer, or if the employer is obligated to disclose all complaints against an employee regardless of outcome.” I note that yours is the first, but not the only, inquiry we have received in recent weeks asking this question.

As you know, until very recently, personnel records of police officers, corrections officers, and paid firefighters that were used to evaluate performance toward continued employment were specifically exempted from disclosure by state statute: Civil Rights Law §50-a and, because of this, Public Officers Law § 87(2)(a). On June 12, 2020, however, Governor Andrew M. Cuomo signed into law Chapter 96 of the Laws of 2020 repealing Civil Rights Law §50-a and amending FOIL to add certain provisions relating to law enforcement disciplinary records. Where prior to June 12, 2020, access to personnel records of a police officer was governed by §50-a and the resulting FOIL exemption pursuant to §87(a)(2), ending the FOIL analysis immediately, access is now governed by FOIL alone.

As a general matter, FOIL is based upon a presumption of access. All records of an agency are available except to the extent that records or portions thereof fall within one or more grounds for exemption appearing in §87(2)(a) through (q) of the Law. Section 87(2)(b) of FOIL, a provision which until June 12, 2020, had not been applied to law enforcement disciplinary records because of Civil Rights Law §50-a, permits an agency to withhold records or portions of records which “if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article . . . .” As you note in your inquiry, the Committee on Open Government has frequently addressed issues relating to rights of access to disciplinary records of public employees pursuant to this subsection of the FOIL. 

In FOIL Advisory Opinion 17195, staff of the Committee opined that a record of an unsubstantiated or unfounded complaint may be withheld under FOIL where the agency determines such complaint would constitute an unwarranted invasion of personal privacy: 

The exception of significance is §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that they are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of one’s official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy . . . . Conversely, to the extent that records are irrelevant to the performance of one’s official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy . . . . [W]hen allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.

Committee staff have issued similar opinions in FOIL AO 19771, FOIL AO 16764, FOIL AO 12802, FOIL AO 12722, FOIL AO 11747, FOIL AO 9463 , and FOIL AO 7602. In sum, Committee staff have long advised that where an agency determines that a record of an unsubstantiated or unfounded complaint would, if disclosed (even in a redacted form (see, e.g., FOIL AO 19771)), constitute an unwarranted invasion of personal privacy, such record need not be disclosed. 

The new provisions of FOIL did not make changes to provisions concerning personal privacy as defined in §87(2)(b). Based on our long-standing interpretation that requires an agency to determine if an unsubstantiated or unfounded complaint against an employee would, if disclosed, constitute an unwarranted invasion of personal privacy, and absent language expressing that the legislature intended that law enforcement disciplinary records should enjoy less protection than the disciplinary records of other government employees, we do not impute such an intent. Moreover, while no court has yet issued an opinion formally answering the question whether unsubstantiated complaints against law enforcement personnel must be disclosed pursuant to FOIL, at least two have recently temporarily enjoined the disclosure of such complaints pending a final determination. [1]
 
In further support of this interpretation, there is a suggestion in the new FOIL provisions that some law enforcement disciplinary records, which the legislature calls “technical infractions” (FOIL §89(2-c)), enjoy greater(rather than less) protection than such infractions contained in the disciplinary records of other government employees. In other words, while there is some express language in the statute to render certain records of law enforcement agency employees less available than those of other government employees, there is nothing in the statute to suggest that the legislature intended that any of the records of law enforcement agency employees be more available than the records of other government employees. 

Accordingly, it is our opinion, in the absence of judicial precedent or legislative direction, that the law does not require a law enforcement agency to disclose “unsubstantiated and unfounded complaints against an officer” where such agency determines that disclosure of the complaint would constitute an unwarranted invasion of personal privacy, but also does not require an agency to withhold such a record. Rather, as with all of the FOIL exemptions except §87(2)(a), which no longer applies to this situation since the repeal of §50-a, an agency may, but not must, withhold as exempt a record meeting the criteria for such exemption. In light of the repeal of §50-a, a request for disciplinary records relating to a police officer must be reviewed in the same manner as a request for disciplinary records of any other public employee. As such, based on our prior analyses of the disclosure requirements relating to disciplinary records of government employees generally, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may in our view be withheld where the agency determines that disclosure would result in an unwarranted invasion of personal privacy. In addition, to the extent that charges are dismissed, or allegations are found to be without merit, we believe that those records also may be withheld based on considerations of privacy. 

Thank you for your inquiry.

Very truly yours,

/s/ Shoshanah Bewlay

Shoshanah Bewlay
Executive Director

SVB/ko

FOIL-AO-f19775
19775

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[1] See https://gothamist.com/news/federal-judge-blocks-release-nypd-misconduct-records-orders-nyclu-keep-records-secret(U.S. District Court for the Southern District of New York) and https://buffalonews.com/news/local/crime-and-courts/city-of-buffalo-blockedfrom-releasing-portions-of-police-disciplinary-records/article_2acfc25c-cde6-11ea-8d7f-3b130bc09a73.html(New York State Supreme Court).