Opinion
Index No. 603929/22
04-05-2023
In the Matter of the Application of Scott LOCKWOOD, Petitioner, v. NASSAU COUNTY POLICE DEPARTMENT, Respondent.
NYSCEF Doc. No.
Notice of Petition, Petition, Memorandum of Law & Exhibits 18
Answer in Special Proceeding, Affirmation in Opposition & Exhibits. 20-30
Memorandum of Law in Reply Affirmation 32
Upon the foregoing papers, the petitioner seeks a judgment pursuant to CPLR 7803(1), (3), directing respondent to release materials alleged to have been wrongfully withheld in derogation of Public Officers Law, Article 6, together with such other and further relief as to this Court may seem just and proper, including costs, disbursements, and statutory attorney's fees.
BACKGROUND
This is a special proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), and the Freedom of Information Law, Public Officers Law ("POL") §§ 84 - 90 ("FOIL"). The underlying facts are gleaned from the parties’ submissions, and are undisputed, except where otherwise noted.
On October 28, 2021, petitioner made a FOIL request pursuant to POL § 89(3) for the release of the disciplinary records of two retired police officers, Michael Palazzo and Guiseppe Palumbo (the "FOIL Request") (NYSCEF Doc. 6 ). On November 18, 2021, the FOIL Request was denied pursuant to POL §§ 87(2)(a), 87(2)(b), 87(2)(c), 87(2)(e), 87(2)(g), and 89(2-c) (the "FOIL Denial") (NYSCEF Doc. 25 ). Petitioner filed an administrative appeal from that denial on December 3, 2021 (NYSCEF Doc. 26 ). A determination denying the appeal was issued by respondent on January 5, 2022 (the "Appeal Determination") (NYSCEF Doc. 23 ).
The instant proceeding was brought on by the filing of a Verified Petition on March 29, 2022 (the "Petition"). The Petition challenges the Appeal Determination, based upon the contention that the records were wrongfully withheld in violation of FOIL, and seeks an order mandating the production of the requested documents, along with attorney's fees pursuant to POL § 89(4)(c)(ii).
By Decision and Order dated August 22, 2022, this Court denied the Petition, with leave to renew, on the basis that Petitioner failed to include a copy of the Appeal Determination, thus depriving the Court of an ability to engage in a meaningful review. On August 30, 2022, Petitioner filed a motion to reargue the August 22, 2022 decision. Pursuant to the parties’ Stipulation dated September 19, 2022, (i) the motion to reargue was withdrawn; (ii) the Petition was deemed re-filed; and (iii) respondent was granted additional time to answer and oppose the Petition and to provide the Court with the administrative record. The matter is now before the Court for a determination on the merits.
DISCUSSION
Repeal of Civil Rights Law § 50-a.
In support of the Petition, petitioner devotes the major portion of his Memorandum of Law to the argument that the repeal of Civil Rights Law § 50-a should be applied retroactively.
Former Civil Rights Law § 50-a provided a blanket exclusion from disclosure under FOIL for law enforcement disciplinary records. On June 12, 2020, Chapter 96 of the Laws of 2020 repealed Civil Rights Law § 50-a, and amended FOIL to add certain provisions pertaining specifically to such records.
POL § 87(2)(a) allows a government agency to withhold records that are specifically exempted from disclosure by state or federal statute. Former Civil Rights Law § 50-a constituted such a specific statutory exemption. It provided, in relevant part:
"1. All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency ... shall be considered confidential and not subject to inspection or review without the express written consent of such police officer ... except as may be mandated by lawful court order.
2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.
3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting." NY Civ. Rights Law § 50-a (McKinney).
The amendments to FOIL included additions to POL § 86, namely: subdivision (6) [defining "law enforcement disciplinary records"]; subdivision (7) [defining "law enforcement disciplinary proceeding"]; subdivision (8) [defining "law enforcement agency"] and subdivision (9) [defining "technical infraction"]. There are also additions to POL § 87, namely: subdivisions (4-a) and (4-b) [providing for the mandatory or discretionary redaction of certain information prior to release]. New provisions were also adopted in POL § 89, namely: the subdivisions (2-b) and (2-c) [each providing for certain redactions prior to release]. At the same time, POL § 87(2)(b), which provides an exemption for records which "if disclosed, would constitute an unwarranted invasion of personal privacy," was not changed.
As a result of this legislation, certain law enforcement disciplinary records that were formerly declared to be confidential and statutorily exempt from disclosure under FOIL now fall within FOIL's disclosure mandate, subject only to FOIL's specific exemptions. That is, such records are no longer categorically exempt, but are presumed to be subject to disclosure, and may be withheld only if they otherwise fall within one of the exemptions set forth in Public Officers Law § 87(2).
Arguing that the repeal of Civil Rights Law § 50 applies retroactively, Petitioner asserts that the current, post-repeal, statutory scheme governs the instant proceeding, notwithstanding that the disciplinary records sought were created prior to the repeal, and that the two officers whose records are the subject of the FOIL Request retired prior to the repeal. Under the current scheme, law enforcement disciplinary records are presumptively open to public inspection. Petitioner rests upon this presumption, and asserts that it is the respondent's burden to demonstrate a basis for withholding the documents.
In opposition, respondent does not directly address the question of whether the repeal of Civil Rights Law § 50-a should be applied retroactively. Respondent merely reiterates the reasoning set forth in the FOIL Denial and the Appeal Determination, neither of which expressly asserted, as a basis for denying the FOIL Request, that the repeal did not apply retroactively. Rather, these determinations purported to be based solely upon the FOIL exemptions set forth in POL §§ 87(2)(a), (b), (c), (e), and (g), and POL § 89(2-c) (an amendment to FOIL that was added by the legislation repealing Civil Rights Law § 50-a ).
While explicit reliance upon Civil Rights Law § 50-a is avoided, the specter of the repealed statute seems to permeate respondent's reasoning, particularly with respect to the exemptions found in POL § 87(2)(a) and (b). As discussed below, respondent appears to advance the proposition that the protections of confidentiality contained in Civil Rights Law § 50-a retain some sort of residual significance, at least with respect to the two officers who retired prior to its repeal, and whose disciplinary records were created prior to the repeal.
Nonetheless, this Court declines to rule on the question of whether or not the legislation repealing Civil Rights Law § 50-a should have retroactive affect. "Judicial review of an administrative determination is limited to the grounds invoked by the agency." Madeiros v. New York State Educ. Dep't , 30 NY3d 67, 74 (2017) ; Matter of McFadden v. McDonald , 204 AD3d 672, 675(2d Dept. 2022). Respondent did not squarely address the issue. Accordingly, the Court limits its discussion to the exemptions proffered by respondent as a basis for withholding the requested documents.
Standard of Review.
"FOIL expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies.... To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted (see Public Officers Law § 87[2] ) .... FOIL expressly provides that an agency that has denied disclosure on the basis of an exemption ‘shall in all proceedings have the burden of proving entitlement’ to the exemption ( Public Officers Law § 89[5] [e] ). Thus, the standard of review on 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. A court is to presume that all records are open, and it must construe the statutory exemptions narrowly.... The agency is required to articulate a particularized and specific justification for denying access ... Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed. ..." Berger v. New York City Dep't of Health & Mental Hygiene , 137 AD3d 904, 906 (2d Dept. 2016) (internal case law citations and quotations are omitted). See Abdur-Rashid v. New York City Police Dep't , 31 NY3d 217, 224-225 (2018). "Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld." Matter of Friedman v Rice , 30 NY3d 461, 475 (2017).
POL § 87(2)(a) .
POL § 87(2)(a) allows a government agency to withhold records that are specifically exempted from disclosure by state or federal statute.
In asserting that the requested records fall within this exemption, respondent does not attempt to invoke the former Civil Rights Law § 50-a, or argue that its repeal did not apply retroactively. Rather, respondent relies, at least in part, on Article 14 of the Civil Service Law, also known as the "Taylor Law." The Taylor Law authorizes public employers to enter into written agreements with recognized employee organizations in determining the terms and conditions of employment. Respondent asserts, essentially, that in accordance with the policy underlying the Taylor Law, the respondent entered into a collective bargaining agreement (the "CBA") with the union representing the officers whose records are sought here. According to respondent, "[h]aving collectively negotiated with the employee organization regarding the availability of disciplinary records, it would be an improper practice for the Department to refuse to give that provision its full force and effect."
Respondent appears to rely upon the following provisions of the CBA [NYSCEF Doc. 27 ]:
6. 3 -2 Anonymous and unfounded complaints or those on which an employee is found not guilty and reports of disciplinary action (PDCN Form 209) shall be removed from the force record and placed in a confidential file or destroyed, if permitted by law, in either case one (1) year after the completion of any investigation relating thereto.
6. 3 -3 Charges and Specifications (PDCN Form 210) and all references thereto shall be removed from the force record and placed in a confidential file or destroyed, if permitted by law, in either case immediately if the employee is found not guilty after the administrative hearing or after proceedings are reversed by a court. If the employee is found guilty, the charges and specifications and determinations thereof and/or references thereto shall be removed from the force record and placed in a confidential file or destroyed, if permitted by law, in either case two (2) years after the final determination is made, so long as the employee has not been found guilty of a violation of the rules and regulations occurring within that two (2) year period.
In addition, respondent asserts that that the CBA was entered into at a time when Civil Rights Law § 50-a was in full force and effect, and that the CBA memorialized said law with respect to the confidentiality of police disciplinary records. The CBA also memorialized the "New York Records Retention and Disposition Schedule" (the "Schedule") relating to disciplinary records. According to respondent, the Schedule permits the destruction of government records earlier than the prescribed three years "if specified either in a union contract or settlement between the employer and the employee." In respondent's view, the Schedule "provides the express authority for government agencies to enter into agreements regarding the availability of disciplinary records and prohibiting access to them after a specified period of time." Respondent argues that the Schedule, which remained effective even after the repeal of Civil Rights Law § 50-a, together with the corresponding provisions of the CBA, comprise a "recognizable" statutory exemption permitting the respondent to withhold the documents sought by the petitioner.
Respondent appears to be referring to Appendix L. RETENTION AND DISPOSITION SCHEDULE FOR NEW YORK LOCAL GOVERNMENT RECORDS (LGS-1), NY Comp. Codes R. & Regs. tit. 8, § App.L, which is an appendix to regulations promulgated by the Education Department.
The Court does not agree. FOIL exemptions must be construed narrowly. Berger , 137 AD3d at 906. Neither the CBA nor the Schedule is a statute. Respondent cites no statute (currently in effect) that specifically exempts police disciplinary records from disclosure. See POL § 87(2)(a). Respondent's reliance upon the Taylor Law is unavailing. The statute does not specifically exempt any records from disclosure. Moreover "[i]t is axiomatic that the public right of access to records under FOIL cannot be bargained away in collective bargaining between management and labor." Schenectady Police Benev. Ass'n v. City of Schenectady , 2020 NY Slip Op. 34346(U) (Trial Order) (Sup. Ct. Schenectady Cty. 2020).
POL § 87(2)(c) .
In a similar vein, respondent relies upon the exemption found in POL § 87(2)(c) for records which "if disclosed would impair present or imminent contract awards or collective bargaining negotiations." In the Appeal Determination, and in opposition to the Petition, respondent asserts that:
In denying your requests under POL § 87(2)(c), the Department advised you that disclosure of disciplinary records in violation of the CBA would impact the County's negotiations with the respective employee organization. The County is engaged in on-going negotiations with the employee organization for a new contract. Committing an improper practice during the pendency of those negotiations would impair the County's ability to achieve the optimum result in reaching a collective bargaining agreement with the employee organization, and would directly impact the taxpayers of the County, who have a vested interest in the costs associated with a contract and the public safety functions provided as a result of a contract.
The Court finds that respondent has not met its burden to demonstrate that the disciplinary records sought by petitioner fall squarely within the exemption set forth in POL § 87(2)(c). See Matter of Friedman v Rice , 30 NY3d at 475. Respondent's assertions that disclosure of such records would impair ongoing negotiations for a new CBA are conclusory and devoid of evidentiary support. See Berger , 137 AD3d at 906 ; Acme Bus Corp. v. County of Suffolk , 136 AD3d 896, 898 (2d Dept. 2016).
Moreover, the issue may be rendered academic by the decision herein. To the extent that this Court determines that the requested records are not exempt from disclosure, any subsequent release of such records by respondent could not be attributed to an "improper practice" on the part of respondent. Rather, such disclosure would signify the respondent's compliance with its obligations under FOIL, as interpreted and directed by the Court. Accordingly, the Court cannot discern how ongoing contract negotiations would be impaired by such disclosure going forward.
POL § 87(2)(b) .
Pursuant to POL § 87(2)(b), a government agency may withhold records "if disclosure would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." Pursuant to POL § 89( 2)(b), an unwarranted invasion of personal privacy includes, but is not limited to:
i. disclosure of employment, medical or credit histories or personal references of applicants for employment;
ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;
iii. sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes;
iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it;
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency;
vi. information of a personal nature contained in a workers’ compensation record, except as provided by section one hundred ten-a of the workers’ compensation law;
vii. disclosure of electronic contact information, such as an e-mail address or a social network username, that has been collected from a taxpayer under section one hundred four of the real property tax law; or
viii. disclosure of law enforcement arrest or booking photographs of an individual, unless public release of such photographs will serve a specific law enforcement purpose and disclosure is not precluded by any state or federal laws."
The FOIL Denial cited POL § 87(2)(b) in withholding the records, based upon the lack of an authorization to release the records from either of the two retired officers. Notably, however, POL § 87(2)(b) contains no provision requiring such an authorization. That requirement was found in the repealed Civil Rights Law § 50-a(1).
In the Appeal Determination, respondent explains that during the entire term of the officers’ employment, Civil Rights Law § 50-a was in full force and effect. The law provided that disciplinary records were confidential, and not subject to inspection or review without the subject officers’ written consent. This gave rise to a "reasonable expectation" that any disciplinary records were statutorily exempt. In respondent's view, this "reasonable expectation" survived the repeal of the law upon which it was based, because this statutory right of privacy is a factor considered by officers in responding to allegations of misconduct.
Similarly, respondent asserts, the corresponding provisions of the CBA predate the repeal of Civil Rights Law § 50-a. These bargained-for rights apply without regard to Civil Rights Law § 50-a. In and of themselves, they give rise to a "reasonable expectation" of privacy in records associated with disciplinary cases that were adjudicated prior to the statute's repeal.
The Appeal Determination concludes that the FOIL Request was properly denied as an unwarranted invasion of privacy insofar as disclosure of such records in contravention of established statutory and contractual rights of confidentiality would be offensive and objectionable to a person of ordinary sensibilities. In respondent's view, "the privacy interests in the records outweigh the public interest in disclosure."
In addition, the Appeal Determination asserts that the records were properly withheld from disclosure, based upon respondent's determination that "disclosure of records associated with unfounded complaints against the officers, complaints where the officers were exonerated, undetermined complaints against them, and complaints that did not result in disciplinary action, would constitute an unwarranted invasion of [the officers’] personal privacy." Respondent cites the Committee on Open Government ("COOG") Advisory Opinion No. 19775, dated July 27, 2020 ("FOIL-AO-19775"). This Advisory Opinion was issued after the repeal of Civil Rights Law § 50-a, and addressed the question of whether, under the new statutory regime, a law enforcement agency was required to disclose "unsubstantiated and unfounded complaints against an officer." As excerpted in the Appeal Determination, the COOG opined 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.
The New York State Committee on Open Government oversees the implementation of FOIL. The advisory opinions of the Committee on Open Government are "neither binding upon the agency nor entitled to greater deference in an article 78 proceeding than is the construction of the agency" Buffalo News, Inc. v. Buffalo Enter. Dev. Corp. , 84 NY2d 488, 493 (1994). Nonetheless, they "may be considered to be persuasive based on the strength of their reasoning and analysis." Thomas v. New York City Dep't of Educ. , 103 AD3d 495, 498 (1st Dept. 2013).
The Court notes, at the outset, that prior to June 12, 2020, Section 87(2)(b) of FOIL had not been applied with respect to law enforcement disciplinary records, because access to the personnel records of law enforcement agencies was governed by Civil Rights Law§ 50-a and the resulting FOIL exemption pursuant to POL § 87(2)(a), obviating the need for further FOIL analysis. Now, insofar as access to such records is governed by FOIL alone, Courts are being called upon to consider the application of the personal privacy exemption under Public Officers Law § 87(2)(b) to the disciplinary records of law enforcement personnel.
In the case at bar, the Court begins with the language of the statute itself. See Majewski v. Broadalbin-Perth Cent. School Dist. , 91 NY2d 577, 583 (1998). POL § 82(2)(b) remains unchanged by the legislation repealing Civil Rights Law § 50-a. As set forth above, POL § 89(2)(b) enumerates the categories of disclosures that would constitute an unwarranted invasion of privacy under POL § 82(2)(b). The list, by its express language, is not exhaustive. Notably, however, the disclosure of the disciplinary records of public employees is not included.
Historically, the application of the privacy exemption to the disciplinary records of public employees was limited, and depended on the nature of the information contained therein. As stated in the Advisory Opinion cited by respondent: "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 ..." COOG FOIL AO 19775.
Case law recognizes a compelling public interest in the job performance of public officials which, in most circumstances, is found to outweigh the official's personal privacy interests. See, e.g., Mulgrew v. Bd. of Educ. of City Sch. Dist. of City of New York , 87 AD3d 506, 508 (1st Dept. 2011) (requiring disclosure of teacher data reports, the Court held: "Further, when balancing the privacy interests at stake against the public interest in disclosure of the information ..., we conclude that the requested reports should be disclosed. Indeed, the reports concern information of a type that is of compelling interest to the public, namely, the proficiency of public employees in the performance of their job duties"); New York 1 News v. Off. of President of Borough of Staten Island , 231 AD2d 524, 525 (2d Dept. 1996) ("Because employee discipline is clearly relevant to the work of the agency ... access to these records should be granted"); Matter of Obiajulu v City of Rochester , 213 AD2d 1055, 1056 (4th Dept. 1995) ("Disciplinary files containing disciplinary charges, the agency determination of those charges, and the penalties imposed, however, are not exempt from disclosure under FOIL"); Schenectady Police Benev. Ass'n , 2020 NY Slip Op. 34346(U) (" ‘Privacy’ is, of course, a subjective issue for individuals but it is not as to public employee records. Public employees have less entitlement to privacy than do non-public employees, at least where job performance is concerned. This is due to the high priority placed on accountability.").
By comparison, as noted by the COOG, disclosure of information unrelated to job performance is generally found to constitute an unwarranted invasion of privacy. See Hanig v. State Dep't of Motor Vehicles , 79 NY2d 106, 112 (1992) (holding that the exemption encompasses information "that would ordinarily and reasonably be regarded as intimate, private information," in this case an employee's medical history); Matter of Obiajulu v City of Rochester , 213 AD2d at 1056 (holding that "personal and intimate details of an employee's personal life are exempt").
Since the repeal of Civil Rights Law § 50-a, the issue has arisen as to whether the privacy interests of law enforcement personnel, long protected by a blanket statutory exemption, are now to be analyzed in the same manner as that of other public employees. The COOG has opined that "[i]n 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." Accordingly, upon the advice of the COOG and in view of the history of FOIL jurisprudence, this Court is of the opinion that, as a general rule, to the extent that disciplinary records are relevant to the performance of a police officer's official duties, they should now be available for disclosure.
As to records of unsubstantiated claims and charges, at least two of the appellate divisions have spoken, in rulings contrary to the opinion of the COOG (FOIL-AO-19775), which, as stated therein, was decided "in the absence of judicial precedent or legislative direction." These appellate decisions hold that there is no categorical exemption on the basis of privacy for records of unsubstantiated claims or charges. "The personal privacy exemption does not categorically exempt documents from disclosure, even in the case where a FOIL request concerns release of unsubstantiated allegations or complaints of professional misconduct.... In order to invoke the personal privacy exemption here, respondents must review each record responsive to petitioner's FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of ... officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner." New York Civil Liberties Union v. City of Syracuse , 210 AD3d 1401, 1404—05 (4th Dept. 2022) (internal citations and quotation marks omitted). See also New York Civil Liberties Union v. New York City Dep't of Correction , 213 AD3d 530, 531 (1st Dept. 2023) ; New York Civil Liberties Union v. City of Rochester , 210 AD3d 1400, 1401 (4th Dept. 2022).
The Court notes that these cases concerned disciplinary records in which the details identifying the involved officers could be redacted to avoid the invasion of their personal privacy. No guidance is offered with respect to the circumstances, such as the ones at bar, in which the records sought pertain to specific officers who are already identified. The statute itself is instructive, to the extent that the newly added definition of "law enforcement disciplinary records," contained in the legislation repealing Civil Rights Law § 50-a, extends to "the complaints, allegations, and charges against an employee." See POL § 86(6)(a). To this Court's knowledge, however, the question remains unanswered by controlling authority.
In any event, this Court is of the opinion that the appellate cases cited above answer a larger question — that is, how a Court should proceed in reviewing the denial of a FOIL request on the basis of personal privacy. These cases instruct that there is no categorical exemption for law enforcement disciplinary records on the basis of personal privacy, even with respect to records of unsubstantiated claims or charges. To hold otherwise — that is, to allow agencies to withhold documents based upon their own determination that their release would constitute an unwarranted invasion of privacy — threatens to subvert the goals of the legislation repealing Civil Rights Law § 50-a, particularly in view of the facility with which an agency could simply theorize that any record is, in its opinion, private. See Schenectady , 2020 NY Slip Op. 34346(U).
These cases further instruct that the responding agency or department must review each record responsive to the FOIL request, and must release the non-exempt, or properly redacted, portion of the record to the requester. This Court is of the opinion that where, as here, identifying information cannot be redacted, the responding agency or department must be guided by the principles applicable to public officers generally, as discussed above. To the extent that the information contained therein falls within one of the categories set forth in POL § 89(2)(b) or is otherwise of an intimate or personal nature, that information may be redacted or withheld. To the extent that the information pertains to the officers’ job performance, it generally must be disclosed, whether or not it pertains to unsubstantiated claims or charges, subject to a particularized showing that such disclosure would constitute an unwarranted invasion of privacy.
The Fourth Department also appears to have answered the question of whether documents created prior to the repeal of Civil Rights Law § 50-a retain some sort of residual protection. In a second case decided on the same day as New York Civil Liberties Union v. City of Syracuse , supra, and adopting the reasoning stated therein, the Fourth Department modified the lower court's decision to the extent that it denied the petition with respect to law enforcement records dated on or before June 12, 2020. The court noted that insofar as the respondent there (as here) did not deny the FOIL request on the ground that the repeal of Civil Rights Law § 50-a was not intended to be retroactive, it was error for the lower court to deny the petition on such basis. Considering only the privacy exemption, the Court directed that the records created before the repeal be reviewed in the same manner as the post-repeal records. See New York Civil Liberties Union v. City of Rochester , 210 AD3d 1400, 1401 (4th Dept. 2022).
Applying the above principles to the case at bar, respondent's argument for a categorical privacy exemption, based upon a "reasonable expectation" of privacy, must fail. No specific facts or evidentiary support is offered to demonstrate what sort of documents or information the records contained. Moreover, no attempt was made to disclose portions of the records that did not fall within any privacy exemption recognized by law. In view of the principles discussed above, this is insufficient. The Court requires a particularized review and specific justification for every document or portion thereof withheld, in accordance with the foregoing discussion.
POL § 87(2)(e) .
This section exempts records that are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures.
In the Appeal Determination, respondent states:
"Denial of [petitioner's] requests was appropriate pursuant to POL § 87(2)(e) to the extent it sought investigatory reports predating disciplinary action. The release of such investigations and records would reveal techniques utilized by the Department to investigate and adjudicate allegations of misconduct. Disclosure of these sensitive techniques and procedures would impair future investigations by alerting prospective subjects of the Department's investigatory mechanisms and capabilities, and creating the potential for action to be taken to thwart the investigations."
Respondent states further:
"Denial was also appropriate pertaining to investigations and records that identify compelled witness and the disclosure of compelled information, and members of the public and information they provided to the Department, as disclosure without authorization would constitute an unwarranted invasion of privacy."
Respondent's first basis for denial under POL § 87(2)(e) tracks the language of subsection (iv), adding nothing more than conclusory detail. Respondent does not identify the categories of records being withheld, or the type of information contained in such records, so as to enable a determination as to the non-routine nature of the investigatory techniques and procedures sought to be protected. See Bellamy v. New York City Police Department , 272 AD2d 120, 124 (2d Dep't 2000), abrogated on other grounds sub nom , Rattley v. New York City Police Department , 96 NY2d 873 (2001). See also New York Civil Liberties Union v. Suffolk Cty. Police Dep't , 67 Misc 3d 1222(A) (Sup. Ct., Suffolk Cty. 2020) and cases cited therein. Compare Asian Am. Legal Def. & Educ. Fund v. New York City Police Dep't, 41 Misc 3d 471, 478 (Sup. Ct., NY Cty. 2013), aff'd, 125 AD3d 531 (1st Dept. 2015). Accordingly, respondent's reasoning falls short of the "particularized and specific justification" required under FOIL. See Madeiros v. New York State Educ. Dep't , 30 NY3d 67, 74 (2017) ; Berger , 137 AD3d at 906. Moreover, respondent made no attempt to produce documents, or portions of documents, that do not fall squarely within this exemption.
Respondent's second ground for denial tracks the language of POL § 8(2)(e)(iii). "A government agency may rely on this exemption only if the agency establishes (1) that an express promise of confidentiality was made to the source, or (2) that the circumstances of the particular case are such that the confidentiality of the source or information can be reasonably inferred." Friedman v. Rice , 30 NY3d 461, 466 (2017). Respondent makes no such showing here.
Thus, the Court cannot determine, on the record presented, whether or not the records were appropriately withheld. Although the respondent has not met its burden of proof, the Court is not required to direct the immediate release of the records. Rather, "[i]f the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents." Lepper v. Vill. of Babylon , 190 AD3d 738, 743 (2021), quoting Gould v. New York City Police Dep't , 89 NY2d 267, 275 (1996) ; McFadden v McDonald, 204 AD3d 672, 674 (2d Dept. 2022).
POL § 87(2)(g).
This section exempts inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations;
iv. external audits, including but not limited to audits performed by the comptroller and the federal government.
Respondent justifies withholding documents pursuant to this exemption on the basis that they constitute "pre-decisional material" prepared to assist the Police Commissioner in issuing a final decision regarding disciplinary action against a member.
"[T]he Commissioner of Police is responsible for issuing a final decision regarding disciplinary action against a member. Prior to this decision, a Department Hearing Officer ("DHO") or Investigating Supervisor prepares a recommendation as to the subject member's guilt or innocence, and proposes an appropriate penalty. The Commissioner considers the recommendation and then issues a final decision on the matter. The recommendation of the DHO or the Investigating Supervisor is not the final agency decision, but rather is prepared during the deliberative process to assist the Commissioner in the final decision-making process as to whether the allegations are true and warrant disciplinary action. The recommendation is pre-decisional material that constitutes an intermediate step leading up to the decision to impose disciplinary action."
Appeal Determination. [NYSCEF Doc.23]
"The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure." The New York Times Co. v. City of New York Fire Dep't , 4 NY3d 477, 488 (2005). The exemption applies to "deliberative material," i.e., communications exchanged for discussion purposes not constituting final policy decisions. Russo v. Nassau Cnty. Cmty. Coll. , 81 NY2d 690, 699 (1993).
The exemption does not apply when the requested material consists of factual data; that is, objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making. Gould , 89 NY2d at 276, 277.
At bar, the Court cannot discern on the record presented the extent to which the withheld documents contain, or do not contain, discoverable factual data. Accordingly, an in camera inspection is required. Gould , 89 NY2d at 275.
POL § 89(2-c) .
This section allows a law enforcement agency to redact from "law enforcement disciplinary records," as defined in POL § 86(6), records pertaining to "technical infractions." A "technical infraction" is defined as a minor rule violation by a person employed by a law enforcement agency ... solely related to the enforcement of administrative departmental rules that (a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person's investigative, enforcement, training, supervision, or reporting responsibilities." POL § 86(9).
In the Appeal Determination, respondent states, without explanation, that the denial of petitioner's requests for records relating to the officers that involve "technical infractions" was proper under POL § 89(2-c). The Court cannot discern, on the record presented, whether or not the withheld documents fall within this category, in whole or in part. Accordingly, in camera review is warranted.
Attorney's Fees.
The Public Officers Law authorizes an award of attorneys’ fees where the petitioner "has substantially prevailed" in the FOIL proceeding and the agency lacked a reasonable basis for denying access to the requested records. Madeiros v. New York State Educ. Dep't , 30 NY3d 67, 78-79 (2017), citing Public Officers Law § 89 [4][c][i], [ii]. Inasmuch as this proceeding "concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme, it cannot be said that respondents had no reasonable basis for denying access to the records at issue." New York Civil Liberties Union v. New York City Dep't of Correction , 213 AD3d 530, 531 (1st Dept. 2023) ; New York Civil Liberties Union v. City of Syracuse , 210 AD3d at 1406. See also Puig v. City of Middletown , 71 Misc 3d 1098, 1109 (Sup. Ct., Orange County 2021). Accordingly, the Court, in its discretion, declines to award attorney's fees at this juncture.
CONCLUSION
The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.
Based upon the foregoing, it is
ORDERED , the petition for a judgment pursuant to CPLR 7803(1), (3), directing respondent to release materials alleged to have been wrongfully withheld in derogation of Public Officers Law, Article 6, is granted in part , to the extent that respondent is directed to review each of the requested disciplinary records, identify those records or portions thereof that may be redacted or withheld as exempt, and provide the requested records to petitioner subject to any redactions or exemptions pursuant to a particularized and specific justification for exempting each record or portion thereof. Any claimed redactions and exemptions from disclosure are to be documented in a manner that allows for review by the Court. See New York Civil Liberties Union v. City of Syracuse , 210 AD3d at 1407. All materials withheld, including unredacted versions of materials released with redactions, shall be provided to the Court for in camera review.
Any requests for relief not specifically addressed herein are denied .
This constitutes the Decision and Order of this Court.