Prompted by news reports of inappropriate behavior by a bus load of off-duty law enforcement officers attending another officer's bachelor party, Petitioners, local newspapers, filed a Freedom of Information Law ("FOIL") request for Schenectady police disciplinary records. (N.Y. Public Officers Law § 87.) The officers had reportedly pelted a civilian's vehicle with raw eggs. The police chief confirmed that, under a promise of confidentiality, eighteen officers had admitted to participating in the incident, and that the department had imposed various disciplinary sanctions.
Petitioners filed FOIL requests seeking "all documents related to disciplinary actions," or, alternatively, the names of the sanctioned officers and the specific punishment imposed upon each. The City records officer rejected these requests, and the Mayor upheld that determination on administrative appeal.
Following exhaustion of these administrative avenues, Petitioners initiated a judicial proceeding to compel disclosure. The trial court held that the City was not compelled to disclose the requested records because FOIL does not require disclosure of records that "are specifically exempted from disclosure by state or federal statute." The trial court relied on Civil Rights Law § 50-a, which states that "[a]ll personnel records, used to evaluate performance toward continued employment or promotion [of police officers] . . . shall be considered confidential" as a basis to exempt the requested material from disclosure. On appeal, the Appellate Division reversed concluding the records were not exempt from FOIL disclosure despite their status as personnel files. The City appealed as of right, and the Court of Appeals reversed, relying on the literal language of the applicable statutes, the legislative history and policy underlying § 50-a, and the Court's precedents regarding FOIL.
Whether the City of Schenectady ("City") police department is required to turn over police department records regarding disciplinary actions to newspapers requesting such information, pursuant to the state's FOIL.
No. The disciplinary records of City police officers are exempt from disclosure under both FOIL and Civil Rights Law § 50-a. The FOIL exception concerns records that "are specifically exempted from disclosure by state or federal statute." Civil Rights Law § 50-a provides, in part, that "[a]ll personnel records, used to evaluate performance toward continued employment or promotion [of police officers] . . . shall be considered confidential and not subject to inspection or review without express written consent of such [officers]…except as may be mandated by lawful court order."
Cases Cited by the Court
Other Sources Cited by the Court
Prior to Daily Gazette, the Court of Appeals had at least twice considered the interplay between mandatory FOIL disclosure and the exception that is provided by Civil Rights Law § 50-a. First, in Capital Newspapers v. Burns, 67 N.Y.2d 562 (N.Y. 1986), the Court held that "the status or need of the person seeking access is generally of no consequence in construing FOIL and its exemptions." Id. at 567. Then, in Prisoners' Legal Services v. New York State Department of Correctional Services, 73 N.Y.2d 26 (N.Y. 1988), the Court recognized that a legislative objective of Civil Rights Law § 50-a was to protect correction officers "from the use of records . . . as a means for harassment and reprisals." Id. at 31. Thus, as Prisoners' Legal Services repeatedly noted, the focus of the test for exemption from disclosure under Civil Rights Law § 50-a was the potential use of the information contained in the record, rather than the specific purpose of the individual requesting access.
The Court held that Prisoners' Legal Services was controlling in the instant case. In doing so, the Court extended the scope of Civil Rights Law § 50-a confidentiality to any information "pertaining to the misconduct or rules violations by corrections officers," regardless of how that information is initially intended for use, provided that there is some risk that the information could be used to embarrass or humiliate the officers involved. See Daily Gazette at para. 20. Specifically, the Court found that § 50-a confidentiality extended to the documents relating to disciplinary actions taken against the eighteen officers, even if the information was sought, under FOIL, by news organizations charged with disseminating information to the public. The fact that Petitioners were members of news organizations, and were not seeking the information in anticipation of litigation, did not change the Court's analysis. Since the potential use of the information is the determinative factor, not the purpose or status of the person requesting access, the FOIL request was properly denied. Further, since the legislature did not include news gathering organizations in the detailed exceptions to this statute, the Court deemed they were therefore not exempt regardless of their role in furthering the public interest. In this case, the potential for abusive use of the requested information existed regardless of whether or not the initial purpose of the requested disclosure was legitimate.
The Court suggests two methods of FOIL exemption disclosure requests that would not violate the Legislature's objective: first, a restrictive formulation of the FOIL request itself; second, redaction by the agency having custody of the records, tailored in either case so as to preclude use in personal attacks against an officer which Civil Rights Law Section 50-a was devised to preclude. However, the Court provides no guidance for limiting disclosure requests within the FOIL exemption to ensure that disclosure will not harass or embarrass officers.
The Court interprets the Legislature's objective to be the prevention of abusive exploitation of personally damaging information contained in officers' personnel records. It does not state whether the narrow area of personally damaging information will provide the only exemption under § 50-a.
The Court maintains that, in a close case, courts may consider the status and purpose of the applicant as relevant to the determination of whether there exists a risk of oppressive utilization of the requested materials. The Court suggests a balancing test between the public interest in disclosure of police misconduct records on the one hand, and each officer's right to confidentiality on the other. However, the Court fails to articulate clearly what constitutes a close case.
Other states take varying views on whether police disciplinary records are subject to disclosure for purposes other than litigation. Such cases generally involve, as in this case, the access of the media or citizens groups to such records.
In Hawai'i Organization of Police Officers v. Society of Professional Journalists - University of Hawai'i Chapter, 927 P.2d 386 (Haw. 1996), the Hawai'i Supreme Court held that requiring disclosure of a police officer's disciplinary record, under the state's analogue to FOIL, did not infringe on highly personal and intimate information, and did not fall within the scope of Hawai'i's constitutional privacy right. Unlike in Daily Gazette, the Hawai'i court did not seem to infer the privacy right by the considering legislative history; rather, the decision to disclose was considered a constitutional matter.
Law Offices of William A. Pangman & Associates, S.C. v. Zellmer, 473 N.W.2d 538 (Wis. 1991), turned on whether the disclosure of police records would impermissibly impinge on police business and the department's ability to conduct an investigation. The Wisconsin Supreme Court found that the requested records did not fall within the reach of Wisconsin disclosure laws.
In Isthmus Publishing Co. v. Madison Police Department, 1995 WL 819176 (Wis. Cir. Nov. 21, 1995), the Circuit Court of Wisconsin, interpreting Wisconsin's disclosure exceptions, took the opposite approach from the New York Court of Appeals in Daily Gazette. There, the Wisconsin Circuit Court held that public policy concerns trumped concerns that a police officer's job may become more difficult because of disclosure. "Public policy also dictates that public officers and employees who engage in potentially illegal conduct should have no expectation that public records relating to that conduct will be suppressed simply because news of the records' existence may make their jobs more difficult or dilute their effectiveness in some way." Id at *8.