If the custodian of a record demanded pursuant to the Freedom of Information Law refuses to provide the record, the custodian has the burden of showing that an exemption applies

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public.

The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Citing Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, the Appellate Division sustained a Supreme Court's ruling that a report prepared by an outside consultant for the agency was not shown to be eligible for the "intra-agency materials exemption" permitted by FOIL.

Public Officers Law §87 sets out the "ground rules" for a party accessing government records. Certain records, however, may be exempt from such disclosure including inter-agency or intra-agency materials other than statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; and iv. external audits, including but not limited to audits performed by the State Comptroller and the federal government.

In this instance the Appellate Division found that the agency failed to establish that it retained its outside consultant "for purposes of preparing the report, a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant." In the words of the Appellate Division, " Supreme Court correctly held that [the agency] failed to meet its burden of showing that the intra-agency materials exemption applies, and properly directed [the agency] to produce an unredacted copy of the subject report."

The Appellate Division, however, remanded the matter to Supreme Court for further proceedings, explaining that Supreme Court failed to address the Petitioners' request for an award of reasonable attorneys' fees.

As the Court of Appeals noted in Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67,FOIL "is based on a presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government." Further, in a FOIL proceeding, the court shall provide for the agency to pay "reasonable attorney's fees and other litigation costs" reasonably incurred by a plaintiff where "such person has substantially prevailed" and, or, when the agency failed to respond to a request or appeal within the statutory time.

Further, noted the Appellate Division, the attorneys' fees provision of FOIL was amended to provide that the court "shall" award counsel fees where the agency has no basis for denying access to the material sought," and that an award of attorney's fees is intended to "encourage compliance with FOIL and to minimize the burdens of cost and time from bringing a judicial proceeding."**

* Examples of laws prohibiting the release of certain public records pursuant to a FOIL request include Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

** Chapter 453, Laws of 2017

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03295.htm

Disciplinary hearing decisions handed down by Administrative Law Judges of the Office of Administrative Tribunals and Hearings

A correction officer was charged with using excessive force and submitting a false report concerning force used by officers in subduing a group of inmates. At trial petitioner presented testimony of an investigator and video of the incident. The officer testified on his own behalf, denying that his report was false. Following the officer’s testimony, petitioner withdrew the excessive force charge. ALJ John B. Spooner recommended dismissal of the false report charge, finding the video did not show that the officer was in the vicinity of where force was used against the inmate. Dep’t of Correction v. Smith, OATH Index No. 1001/19 (Apr. 2, 2019).

An emergency medical technician (“EMT”) was charged with leaving a patient in the care of persons who were not medically trained, refusing an order to undergo substance use testing, being absent without leave, falsely reporting that a patient had flagged down an ambulance so that he could eat his meal, creating a false patient care report for a nonexistent patient, forging his partner’s signature on the false patient care report, and testing positive for a controlled substance. Following a two-day trial where petitioner presented testimony from seven witnesses and documentary evidence, and the EMT testified on his own behalf, ALJ Astrid B. Gloade sustained the charges and recommended termination of the EMT’s employment. Fire Dep’t v. Gala, OATH Index No. 2772/18 (Apr. 16, 2019), adopted, Comm’r Dec. (May 7, 2019).

A medicolegal investigator was charged with negligently failing to take jurisdiction over one case, failing to perform adequate investigations of six other cases, and being discourteous during a phone conversation with a decedent’s daughter. ALJ Kevin F. Casey sustained the charge that the investigator negligently failed to take jurisdiction over a case involving a 12-year old boy with a dislodged tracheostomy tube, who died after he was transported from school to the hospital. He found that in four instances petitioner showed the errors were so serious that they amounted to misconduct and he sustained that charge in part. He dismissed the discourtesy charge. A 40-day suspension was recommended. Dep’t of Health & Mental Hygiene v. Yee, OATH Index No. 520/19 (Apr. 5, 2019).

A correction captain was found to have been excessively absent over a 17 month period. All but two days of absence were due to psychological disability caused by an inmate assault. The captain had returned to her post for three months, when petitioner ordered her out on leave for the next four months. The captain has since returned to work. Petitioner sought termination of the captain’s employment, but ALJ Casey found that would be unduly harsh. Noting that the available penalties under section 75 of the Civil Service Law are limited, he recommended a 30 day suspension, but he urged the parties to consider an alternative, appropriate remedy, such as a leave of absence, probation, or holding the penalty in abeyance. Dep’t of Correction v. Anonymous, OATH Index No. 348/19 (Apr. 29, 2019).

Releasing the body camera footage recorded by equipment worn by a police officer

§50-a of the New York State Civil Rights Law addresses the release of personnel  records  of  police  officers,  firefighters  correction  officers and incumbents of certain other positions "used   to   evaluate   performance  toward continued employment or promotion," which are considered confidential and which are not subject to inspection or review without the express prior written consent of the individual "except as may be mandated by lawful court order."

The Patrolmen's Benevolent Association of the City of New York [PBA] challenge New York City's public release of police department body-worn-camera footage without a court order or the relevant officers' consent claiming such release was subject to the mandates of Civil Rights Law §50-a. Supreme Court denied the PBA's petition, ruling that the PBA could not maintain the hybrid action "because there is no private right of action under Civil Rights Law §50-a" and granted New York City's cross motion to dismiss the PBA's petition.

PBA appealed the Supreme Court's ruling, which was subsequently unanimously affirmed by the Appellate Division but on grounds that differed significantly from those articulated by the lower court in its opinion.

The Appellate Division held that although §50-a "does not provide a private right of action" this does not preclude a review of PBA's request for injunctive relief in an Article 78 proceeding "because the statute creates protected rights (for police officers) and does not explicitly prohibit a private right of action or otherwise manifest a clear legislative intent to negate review."

That said, the Appellate Division proceeded to deny the PBA's petition, explaining that the key element was whether the " body-worn-camera footage" constitute a "personnel record" within the meaning of under Civil Rights Law §50-a which sets the "threshold criterion" as whether the documents (or a summary of the documents) are "of significance to a superior in considering continued employment or promotion."

Noting that the Court of Appeals in Matter of Prisoners' Legal Services, 73 NY2d at 32 indicated that whether a document "containing personal, employment-related information about a public employee," that is under the control of the agency, and "relied upon in evaluating the employee's performance" is covered by Civil Rights Law §50-a "depends upon its nature and use in evaluating an officer's performance." Further, said the Appellate Division, in Daily Gazette Co. v City of Schenectady, 93 NY2d 145, the Court of Appeals held that, in the context of a FOIL disclosure of an officer's personnel records, preventing such disclosure requires more than merely demonstrating that the document "may be used" to evaluate performance.

PBA had argued that the body-worn-camera was designed, in part, for performance evaluation purposes and is "clearly 'of significance' to superiors in considering employment or promotion" and that the court's holding that body-worn camera footage is not a personnel record "would result in an unprecedented invasion of privacy."

Recognizing PBA "valid concerns about invasion of privacy and threats to the safety of police officers," the Appellate Division, considering the record's general "nature and use," and not solely whether it may be contemplated for use in a performance evaluation, found that "given its nature and use," the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a." 

In the words of the court, were body-camera footage deemed a "personnel record" within the meaning §50-a, it could sweep into the purview of §50-a many police records that are an expected or required part of investigations or performance evaluations, such as arrest reports, stop reports, summonses, and accident reports, which clearly are not in the nature of personnel records so as to be covered by §50-a."

The court concluded that "given its nature and use," the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes but is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. "To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03265.htm

New York public employers are prohibited from taking retaliatory action against employees as a result of their whistle blowing

Civil Service Law §75-b.2(a) bars a public employer from dismissing or taking other disciplinary or other adverse personnel action against a public employee with respect to his or her employment as the result of the employee disclosing "to a governmental body information:

(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or

(ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. 'Improper governmental action' shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation."*

The prohibitions set out in §75-b.2(a) were explored after seasonal part-time police officers [Plaintiffs] employed by a Town police department [Defendants ] were advised that they would not be returning to that role in 2006. Plaintiffs contend that this was done in retaliation for their complaints regarding the misconduct of other Town police officers and improper policing practices. Plaintiffs ultimately commenced a CPLR Article 78 action alleging that they were terminated in violation of Civil Service Law §75-b.**

Supreme Court dismissed Plaintiffs' petition after finding that they had failed to make the necessary disclosures to a governmental body required by the provisions of §75-b. Accordingly, the court found that Plaintiffs were not within the ambit of the protections accorded "whistleblowers" in the event they had suffered retaliation as a result of such action. Citing Hastie v State University of New York at Morrisville, the Appellate Division sustained the Supreme Court's ruling, explained that the petition was properly dismissed.

Turning to Plaintiffs' defamation claim involving "pseudonymous blog forum" entries allegedly posted by officials and Plaintiffs' former coworkers, the employer "produced a job description for police officers that does not require officers to engage with the public on the Internet, let alone to hide in the shadows and defame former colleagues there." Accordingly, the Appellate Division concluded that "any defamatory postings ... were not made in the scope of [their former coworkers'] employment, and Supreme Court properly granted summary judgment dismissing the defamation claim brought against the employer.

In the words of the Appellate Division, the employer "could not be held liable for defamatory statements made by their employees in a personal capacity."

* During the period at issue, a disclosing employee was also obliged to make "a good faith effort [before disclosure] to provide the appointing authority or his or her designee the information . . . [in order to] provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety." (Civil Service Law §75-b [2] [former (b)], as repealed by Laws of 2015, Chapter 585, §2.

** CSL §75-b(3)(b) provides that “Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under [subdivision 2 of CSL §75-b], he or she may assert such as a claim before the arbitrator."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_03725.htm