Matter of New York Civ. Liberties Union v New York City Police Dept. (
| Matter of New York Civ. Liberties Union v New York City Police Dept. |
| December 11, 2018 |
| Garcia, J. |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, March 20, 2019 |
[*1]
| In the Matter of New York Civil Liberties Union, Appellant, v New York City Police Department et al., Respondents. |
Argued November 14, 2018; decided December 11, 2018
Matter of New York Civ. Liberties Union v New York City Police Dept.,
Civil Rights Law § 50-a requires that police officer personnel records be kept confidential, and sets out a procedure to obtain a court order of disclosure. Petitioner, the New York Civil Liberties Union (NYCLU), seeks disclosure of protected personnel records from the New York City Police Department (NYPD) pursuant to the Freedom of Information Law (FOIL), contending that compliance with Civil Rights Law § 50-a is unnecessary where an officer's identifying information is adequately redacted. We disagree, and hold that the requested personnel records are exempt from disclosure pursuant to Public Officers Law § 87 (2) (a) and Civil Rights Law § 50-a.
The parties' FOIL dispute concerns documents generated in connection with NYPD disciplinary proceedings that arise out of allegations referred to the NYPD by the New York City Civilian Complaint Review Board (CCRB).
The CCRB was created in 1992 as an independent City agency empowered to receive and investigate allegations of police{**
If the NYPD chooses to prosecute, the subject officer is served with written "Charges and Specifications" identifying the alleged misconduct (see 38 RCNY 15-11). NYPD disciplinary proceedings are conducted in the NYPD's internal adjudicatory forum, and hearings are open to the public (see 38 RCNY 15-04 [g]).[FN1] Following an administrative hearing, the judge issues a "Draft Report and Recommendation," consisting of "a summary and analysis of the testimony, recommended findings of fact and conclusions of law, and recommendations for the disposition of the Charges and Specifications" (38 RCNY 15-06 [a] [2]). The draft is sent to the parties, including the subject officer and his or her counsel, for review and an opportunity to comment (38 RCNY 15-06 [b], [c]). The Deputy Commissioner of Trials (or an Assistant Deputy Commissioner) then finalizes the Report and Recommendation and forwards it to the Police Commissioner, along with the transcript of the proceedings, any exhibits, and any comments submitted by the parties (38 RCNY 15-06 [c]).
In rendering a final determination, the Police Commissioner "may approve the recommendation or modify the findings or the penalty" (38 RCNY 15-08 [a]). If the Commissioner approves the findings and penalty, the Commissioner stamps the Report and Recommendation as "Approved" and signs it, along with a "Disposition of Charges" form that identifies each charge, its disposition, and the penalty imposed.
In August 2011, the NYCLU submitted a FOIL request to the NYPD seeking (1) "[c]opies of all final opinions, dated from January 1, 2001 to present, from the department trial room (Deputy Commissioner of Trials) adjudicating charges and specifications arising out of cases in which the CCRB has substantiated charges against a member of the department," and (2) {**
The NYCLU administratively appealed. The NYPD granted the appeal in part, producing more than 700 pages of Disposition of Charges forms with redactions intended to conceal the identifying information of the subject officers and complainants. With respect to the "final opinions"—the approved Report and Recommendation documents—the NYPD denied the appeal, again concluding that the documents were exempt from disclosure pursuant to Public Officers Law § 87 (2) (a) and Civil Rights Law § 50-a, among other FOIL exemptions. The NYPD noted that Civil Rights Law § 50-a "defines a process which is the exclusive means for obtaining records that fall within its purview" and requires, among other things, "giving notice to the police officer who is the subject of the records, and obtaining a court order directing disclosure pursuant to the process defined in [Civil Rights Law] § 50-a (2)."
The NYCLU then commenced this CPLR article 78 proceeding, seeking disclosure of the withheld NYPD disciplinary records. Supreme Court denied the NYPD's subsequent motion to dismiss and directed the NYPD to "select five decisions at random, and redact them to remove anything to identify the subject of the complaint." Supreme Court further ordered the NYPD to notify the subject officers of the proceeding and the proposed redactions.
Pursuant to Supreme Court's order, the NYPD selected five decisions, applied redactions, and submitted the redacted documents to Supreme Court for in camera review. The NYPD also filed an answer to the NYCLU's petition, contending that disclosure of the documents, even in redacted form, was prohibited by Civil Rights Law § 50-a because the redactions could not adequately conceal the officers' identities. The five subject officers similarly objected to the disclosure of the redacted documents. Supreme Court subsequently "deem[ed] the[ ] redactions [*2]adequate" and ordered that "[a]ll future{**
The Appellate Division unanimously reversed and dismissed the proceeding (
The FOIL exemption at issue, Public Officers Law § 87 (2) (a), provides that an agency may deny access to records that "are specifically exempted from disclosure by state or federal statute." The parties agree that the disciplinary decisions requested by the NYCLU are covered by a state statute: Civil Rights Law § 50-a.
Civil Rights Law § 50-a provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review" (Civil Rights Law § 50-a [1]). The statute contains only two exceptions to confidentiality: officer consent (Civil Rights Law § 50-a [1]), and court authorization (Civil Rights Law § 50-a [3]).[FN2] Subdivisions (2) and (3) of Civil Rights Law § 50-a set forth a procedure to obtain a court order of disclosure, and establish a number of procedural safeguards that must be observed before judicial authorization may be granted. Specifically, subdivision (2) provides that, "[p]rior to issuing" a court order authorizing the release of confidential personnel records, "the judge must review all such requests and give interested parties"—including the subject officer(s)—"the opportunity to be heard" (Civil Rights Law § 50-a [2]). The court may not issue an order "without a clear showing of facts sufficient to warrant the judge to request records for review" (id.). In addition, subdivision (3) provides that, "[i]f, after such hearing, the judge concludes there is a sufficient basis" to {**
The disciplinary decisions requested by the NYCLU are quintessential "personnel records" protected by Civil Rights Law § 50-a. The statute was designed to protect police officers from the use of their records "as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs.,
Contrary to the NYCLU's claim, the protection afforded by Civil Rights Law § 50-a is not limited to the context of actual or potential litigation (Matter of Daily Gazette Co. v City of Schenectady,
For instance, in Matter of Daily Gazette, the petitioners, two newspapers, submitted FOIL requests seeking police department records concerning disciplinary action against 18 police officers (
Much like the disciplinary records shielded from disclosure in Daily Gazette, the documents at issue here are " 'the very sort of record' " presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law § 50-a (Daily Gazette,
[2] Once it is implicated, Civil Rights Law § 50-a does not merely guarantee confidentiality in the abstract. Rather, the statute establishes specific procedural rights and mechanisms designed to implement its protective goals. In particular, while protection under Civil Rights Law § 50-a extends broadly beyond the litigation setting, disclosure is "strictly limited" to specified contexts under the statute (Daily Gazette, 93 NY2d at{**
The NYCLU and its amici advance a number of policy arguments that, in their view, counsel in favor of disclosure. Public access to NYPD disciplinary decisions, they contend, is critical to maintaining public confidence in the integrity of the police force and ensuring that NYPD disciplinary actions properly apply the relevant legal principles. And redactions, they argue, are commonly used in a variety of contexts to balance transparency goals with individual privacy interests. The NYPD similarly suggests, at least before this Court, that redacted disclosure of protected personnel records in the FOIL context obviates the need for strict compliance with Civil Rights Law § 50-a where the redactions are, in the department's view, adequate to protect officer confidentiality.
These policy arguments are not new. To the contrary, in enacting and amending Civil Rights Law § 50-a, the legislature was well aware of them. In fact, "opposition to the bill was expressed on the ground that the needs to prevent oppressive use of police personnel records 'do not offset the benefits of assuring the availability to the public of the performance evaluation of its servants' " (Daily Gazette,
The alternative "redacted disclosure" regime proposed by the parties would eviscerate the legislature's mandate. Civil Rights Law § 50-a sets up a "legal process whereby the confidentiality of the records may be lifted by a court, but only after an in camera inspection and affording affected parties notice and an opportunity to be heard" (Daily Gazette,
Importantly, the FOIL exemption at issue, Public Officers Law § 87 (2) (a), applies not only to section 50-a personnel records, but to all records covered by the various "state or federal statutes" that serve to protect the confidentiality of countless categories of individuals. That exemption incorporates protective statutes that safeguard the confidentiality of, for example, sex offense victims (Civil Rights Law § 50-b), medical patients (Public Health Law § 2803-c [3] [f]), and prospective jurors (Judiciary Law § 509 [a]), to name a few. While "nothing in FOIL" prohibits an agency from "disclos[ing] exempt records at [its] discretion" (Rivera, J., dissenting op at
576-577 [emphasis added]), these distinct and mandatory New York statutory provisions expressly operate to guarantee confidentiality notwithstanding FOIL's permissive disclosure regime (e.g. Civil Rights Law § 50-a [1] [requiring that "(a)ll personnel records . . . shall be considered confidential and not subject to inspection or review" (emphasis added)]; Civil Rights Law § 50-b [1] [requiring that "(t)he identity of any victim of a sex offense . . . shall be confidential" (emphasis added)]; Public Health Law § 2803-c [3] [f] [requiring that "(e)very patient shall have the right to {**
[3] FOIL's statutory scheme separately makes clear that redacted disclosure cannot be compelled where, as here, an agency has met its burden of demonstrating that records are exempt from disclosure under Public Officers Law § 87 (2) (a). FOIL's exemption provisions are housed in Public Officers Law § 87 (2), which enumerates the categories of records that are excluded from mandatory disclosure. The second prescribed exemption, Public Officers Law § 87 (2) (b), applies to records that "if disclosed would constitute an unwarranted invasion of personal privacy," as defined by Public Officers Law § 89 (2). Public Officers Law § 89 (2), in turn, supplies the statutory authority for an agency to "delete identifying details" in order "to prevent unwarranted invasions of personal privacy" (Public Officers Law § 89 [2] [a]). It further provides that "disclosure {**
We discussed this omission in Matter of Short v Board of Mgrs. of Nassau County Med. Ctr., which involved a FOIL request for medical records relating to claims for Medicaid reimbursement for abortions performed at a medical center (
{**
Here, as in Short and Karlin, the requested records are exempt from disclosure under Public Officers Law § 87 (2) (a), which contains no statutory authorization for redaction. As such, as in Short and Karlin, redacted disclosure cannot be compelled. The dissent's core contention—that Short and Karlin "should not be followed" (Rivera, J., dissenting op at
587), and the Court should extend the use of redaction to Public Officers Law § 87 (2) (a)—is "perhaps a predicate on which to ground an argument to the Legislature that [FOIL] should be amended" (Short,
This case presents a straightforward application of Civil Rights Law § 50-a and Public Officers Law § 87 (2) (a), which mandate confidentiality and supply no authority to compel redacted disclosure. To the extent the dissent would prefer to revoke civil rights protections afforded to police officers (Civil Rights Law § 50-a), victims of sex crimes (Civil Rights Law § 50-b), medical patients (Public Health Law § 2803-c [3] [f]), {**
Stein, J. (concurring). Although I agree with the majority's conclusion that personnel records protected by Civil Rights Law § 50-a are exempt from disclosure under Public Officers Law § 87 (2) (a), I write separately to explain that, in my view, it is not necessary to rely on Matter of Short v Board of Mgrs. of Nassau County Med. Ctr. (
As the majority recognizes, Public Officers Law § 87 (2) (a)—by stating that an agency may deny access to records "specifically exempted from disclosure by state or federal statute"—expressly contemplates that confidentiality of records may be mandated by another provision of law. Civil Rights Law § 50-a is such a statute inasmuch as it not only establishes that certain personnel records must be kept confidential, but also furnishes a detailed legal process whereby a court may compel disclosure of such records in limited circumstances upon notice and an opportunity for interested parties to be heard (see Civil Rights Law § 50-a [1], [2], [3]). Section 50-a contains its own express exemption, allowing disclosure to certain public officials who require access in furtherance of their official duties (see Civil Rights Law § 50-a [4]). As the majority holds, these statutes—Civil Rights Law § 50-a and Public Officers Law § 87 (2) (a)—must be read together (see Matter of Goodman [Barnard Coll.—Commissioner of Labor],
Notably, Civil Rights Law § 50-a does not permit the disclosure of personnel records—redacted or otherwise—outside the context of pending litigation to which the records are relevant and material (see Civil Rights Law § 50-a [3]; Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs.,
Thus, as the majority explains, the only reasonable way to reconcile and give effect to both the FOIL exemption contained{**
My analysis is consistent with sections I and II of the majority opinion. However, because the question before us is readily answered by reference to the plain language of Public Officers Law § 87 (2) (a) and Civil Rights Law § 50-a, I find it unnecessary to rely on Matter of Short (
Rivera, J. (dissenting). New York State's Freedom of Information Law (FOIL) provides public access to government records unless the responsible agency exercises its discretion to withhold information that falls within a small number of statutory exemptions (see generally Public Officers Law § 87). To fulfill its obligations under FOIL, an agency may redact exempted information from a "mixed document," one that contains both exempted and nonconfidential material. Both petitioner New York Civil Liberties Union (NYCLU) and respondent New York City Police Department (NYPD) agree with these uncontroversial descriptions of the statutory requirements and current practice. Indeed, it is how the mandates of{**
Yet, the majority now asserts that agencies, the courts, and indeed, the general public have labored under a misunderstanding of FOIL's mechanics and salutary purpose. According to the majority, redaction is unavailable even where it may be the sole method to effectuate the statutory goal of promoting government transparency "to hold the governors accountable to the governed" (NLRB v Robbins Tire & Rubber Co.,
The NYCLU appeals the denial of its FOIL request for copies of 10 years of NYPD final disciplinary rulings in individual police officer abuse cases, substantiated and referred to the NYPD by New York City's independent Civilian Complaint Review Board. The NYPD claims it may deny disclosure of the disciplinary rulings pursuant to one of FOIL's exemptions, by which an "agency may deny access to records or portions thereof that . . . are specifically exempted from disclosure by state or federal statute" (Public Officers Law § 87 [2] [a]). It asserts that the disciplinary rulings here are "personnel records used to evaluate performance toward continued employment or promotion" of the officers and thus confidential within the{**
After in camera review of a random sample of redacted disciplinary rulings, Supreme Court ordered disclosure of redacted copies of all the rulings covered by the NYCLU's FOIL request. The Appellate Division reversed, not on the specifics of FOIL request but based on a blanket exemption of all Civil Rights Law § 50-a personnel records, notwithstanding the ability of the NYPD to remove all police officer identifying information (Matter of New York Civ. Liberties Union v New York City Police Dept.,
New York State's FOIL requires that, upon request, government agencies provide access to records within its control (Public Officers Law § 87). The legislative purpose, as explained in the legislative declaration, is to make government transparent:
"[A] free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government . . .{**32 NY3d at 575}
"The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.
"The legislature therefore declares that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article" (Public Officers Law § 84).
Echoing this clear statement of legislative intent, the Court has recognized that the statute "proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" (Matter of Fink v Lefkowitz,
The legislature balanced this "general policy of disclosure" against the state's interest in keeping certain governmental matters confidential by adopting a short list of exemptions (id.; Public Officers Law § 87 [2] [a]-[i],[*8][o]).[FN1] Specifically, FOIL provides that "[e]ach agency shall, in accordance with its {**
In accordance with the goal of government transparency, these exemptions "are to be narrowly interpreted so that the public is granted maximum access to the records of government" (Matter of Data Tree, LLC v Romaine,
In line with its overarching policy favoring disclosure, the legislature did not foreclose disclosure of all records that fall within an exemption. Instead, while the statute empowers an "agency to deny access to the specified records," nothing in FOIL "restricts the right of the agency if it so chooses to grant access to records within any of the statutory exceptions, with or without deletion of identifying details" (Matter of Short v Board of Mgrs. of Nassau County Med. Ctr.,
In this regard, FOIL is consistent with the federal Freedom of Information Act (FOIA), which permits agencies to disclose exempt records at their discretion (see 5 USC § 552). "As we have observed, '[f]ederal case law and legislative history . . . are instructive' when interpreting a FOIL provision 'patterned after the Federal analogue' " (Matter of Friedman v Rice,
Lastly, "if 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 and order disclosure of all nonexempt, appropriately redacted material" (Gould,
Civil Rights Law § 50-a (1) provides:
"All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof . . . 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."
Subdivisions (2) and (3) establish a process for a court to determine whether to disclose these personnel records. The court must first give interested parties an opportunity to be heard and determine if there is "a clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a [2]). If such a showing is made, the court "shall then review the file and make a determination as to whether the records are relevant and material in the action before [it]. 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" (Civil Rights Law § 50-a [3]).
The Court has expounded on the proper interpretation of Civil Rights Law § 50-a and its interplay with FOIL in a trio of cases. In the first, Capital Newspapers, a journalist investigating alleged abuses of sick leave privileges by Albany police officers requested copies of the sick time records of the police officers' union president (
In the second case, Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., the Court concluded that Civil Rights Law § 50-a applies to records sought outside the context of litigation (
In response to the dissent's textualist argument that Civil Rights Law § 50-a is inapplicable outside the litigation context, the Court acknowledged that subdivisions (2) and (3) permit "court-ordered disclosure of personnel records within its protection—i.e., those that have potential use in harassing and embarrassing officers in litigation—only in the context of an ongoing litigation" (id. at 33). However, it held that the protection of section 50-a was not coextensive with the court's authority to order disclosure as such a narrow view would allow parties to circumvent the law "by the simple expedient of making {**
The Court also distinguished Capital Newspapers because the records in that case "were sought for a purpose and in a context that could have had no relation to potential litigation" (id.). Rather than limiting the scope of section 50-a to records pertinent to pending litigation, Capital Newspapers "simply recognized that the legislative intent in enacting the 1981 amendment to section 50-a was to prevent release of sensitive personnel records that could be used [*11]in litigation for the purpose of harassing or embarrassing correction officers" (id.). Thus, "records having remote or no such potential use . . . fall outside the scope of the statute" (id.).
Daily Gazette, the last of the triad, involved a FOIL request by two newspapers seeking Schenectady Police Department records of disciplinary actions against 18 police officers (
In its holding, the Court reaffirmed that the statutory protections of Civil Rights Law § 50-a are not limited to those sought in the context of actual litigation. While one of the dangers addressed by the law was the possibility that a police officer testifying in a legal proceeding would be "discredited by confrontation with irrelevant 'complaints, disciplinary proceedings or reprimands filed against them in the past' " (id. at 155, quoting Mem of Div of Budget, Bill Jacket, L 1976, ch 413) the statute was also designed "to prevent abusive exploitation of personally damaging information contained in officers' personnel records" that could be used to harass officers or their families (id. at 154-155). Accordingly, the "decisive factor in determining whether an officer's personnel record was exempted from FOIL disclosure under Civil Rights Law § 50-a was the potential use of the information contained therein, not the specific purpose of the particular individual requesting access, nor whether the request was actually made in contemplation of litigation" (id. at 156-157). The critical question then is whether the requested documents can be used against the officers "as a device for harassing or embarrassing" them. That inquiry, {**
Significantly, the Court in Daily Gazette analyzed the interplay between FOIL's disclosure mandate and the protections afforded an individual officer by Civil Rights Law § 50-a, declaring that the latter's "comprehensive statutory exemption must be tempered when it interacts with the competing, equally strong legislative policy of open government through broad public access to governmental agency records embodied in the FOIL legislation" (id. at 157). The Court concluded that when a FOIL request seeks personnel records that fall within Civil Rights Law § 50-a "nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of [the law]—to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer" (id. at 157-158).
The burden on the agency to withhold the requested information from disclosure is heavy and turns on the potential use against a known individual. "In the case of a claim that disclosure is 'specifically exempted from disclosure by state . . . statute' . . . the agency must demonstrate a substantial and realistic potential of the requested material for the abusive use against the officer" (id. at 159). To achieve the goals of the respective statutes, the Court sanctioned the familiar process of redaction: "disclosure for uses that would not undermine the protective legislative objectives could be attained . . . through redaction by the agency having custody of the records, tailored . . . so as to preclude use in personal attacks against an officer which Civil Rights Law § 50-a was enacted to preclude" (id.). In this way, a FOIL request may be granted, and the public access goals of FOIL achieved, "without sacrificing the values the Legislature embraced in enacting Civil Rights Law § 50-a" (id.).
As these cases illustrate, in the context of a FOIL request for personnel records covered by Civil Rights Law § 50-a, the Court has never, as the majority has here, untethered the confidentiality requirement of section 50-a from its legislative intent to protect officers from harassment based on records specific to them. The Court has consistently treated Civil Rights Law § 50-a as a statutory bulwark against disclosure of sensitive personnel records that reveal an officer's identity and disciplinary history because such disclosure has the potential to degrade or embarrass an officer. The law does not elevate confidentiality{**
[*12]That concern is not implicated where the subject of the records is unknown, as where all identifying information is redacted. As the Court concluded in Daily Gazette, in what may be considered prescient given the facts of the instant appeal,
"it may well be possible for petitioners largely to fulfill their important function of dissemination of matters of legitimate public interest, i.e., concerning the appropriateness of the City's response to off-duty misconduct by members of its police force, without sacrificing the values the Legislature embraced in enacting Civil Rights Law § 50-a" (id. at 159).
Applying the relevant statutes and our prior case law to the instant appeal, the NYCLU's FOIL request for the disciplinary rulings should be granted and the records redacted of all information that could lead to the identification of individual police officers. The random sample of rulings Supreme Court reviewed in camera were redacted of names, height, weight, religion, and profession of complainants, officers, and witnesses; exact dates and locations of officer assignments; and vehicle makes and models. The same redaction process—allowing for removal as needed of additional types of identifying information—can similarly be conducted on the remaining undisclosed disciplinary rulings.
The NYPD's claim that its disciplinary rulings are ill-suited to redaction because the documents can never be completely purged of identifying information is essentially an argument for a categorial exclusion from FOIL. We have previously{**
The NYPD's alternative argument that it need not disclose the rulings because the necessary redaction would be so extensive as to render the documents unrepresentative of the underlying analysis is unavailing. As the NYCLU argues, redaction by definition leaves the document "incomplete" and has never been a reason to deny a FOIL request. It bears repeating that FOIL affords the public "the means to obtain information . . . to 'make intelligent, informed choices with respect to both the direction and scope of governmental activities' " (Capital Newspapers,
{**
The majority's adoption of a categorical exemption from disclosure ignores that we have eschewed blanket exemptions. More significantly, it fails to recognize that Civil Rights Law § 50-a is not a general confidentiality statute, but instead a legislative response to the use of employment evaluation records to embarrass and harass officers. Contrary to our precedent, the majority has expanded the application of section 50-a by ignoring our directive that nondisclosure "be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a," i.e. to prevent the use of personnel records against an identified officer (Daily Gazette,
Here, the legislative concern that motivated enactment of Civil Rights Law § 50-a is not implicated by the NYCLU's request for disciplinary rulings stripped bare of all information that identifies particular officers. In contrast, secreting this information undermines the significant public policy of FOIL, and conceals government practices that the legislature did not intend to shield from public scrutiny and debate.
The majority rejects the NYCLU and NYPD's claim that redaction of Civil Rights Law § 50-a records is permissible, {**
The majority's reliance on Prisoners' Legal Servs. for the proposition that personnel records may only be disclosed by court order pursuant to Civil Rights Law § 50-a (3) in the context of pending litigation (majority op at
566) is misplaced. Not only is this contradicted by the plain language of FOIL, which provides an "agency may deny access to records" that are exempted by state or federal statute, it turns on a selective, unrepresentative, reading of Prisoners' Legal Servs. There, the Court stated that Civil Rights Law § 50-a "permits court-ordered disclosure of personnel records within its protection—i.e., those that have potential use in harassing and embarrassing officers in litigation—only in the context of an ongoing litigation" (
Simply stated, we have previously sanctioned redaction in the context of a FOIL request for Civil Rights Law § 50-a records (Daily Gazette,
The majority's further reliance on Matter of Short v Board of Mgrs. of Nassau County Med. Ctr. (
In fact, our Civil Rights Law § 50-a jurisprudence has expressly embraced the reasoning of Chief Judge Cooke's dissent in Short. He argued that disclosure of the 29 medical records in redacted form would protect the privacy interests of the subject individuals while furthering the purposes of FOIL: "to encourage 'the understanding and participation of the public in government', 'to extend public accountability wherever and whenever feasible', and to forestall thwarting '[t]he people's right to know the process of governmental decision-making . . . by shrouding [the underlying documents and statistics] with the cloak of secrecy or confidentiality' " (Short,
For the reasons I have discussed, Supreme Court properly ordered disclosure to the NYCLU of redacted copies of the requested disciplinary rulings. The majority's conclusion to the contrary is based on an interpretation of Civil Rights Law § 50-a that does nothing to serve the purpose of that statute and instead undermines New York State's strong public policy of open government, transparency, and public access to government records. It is now for the legislature to correct the majority's error and reaffirm its declaration "that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government" for after all "government is the public's business" (Public Officers Law § 84).
Wilson, J. (dissenting). The majority's analysis ignores a crucial fact. New York City has determined that the Trial Room hearings are open to the public, subject to confidentiality provisions imposed by the Deputy Commissioner of Trials (see 38 RCNY 15-04 [g]). The Trial Room confidentiality provisions give the subject officer (and others appearing or producing documents) notice and opportunity to seek confidential treatment, whether the underlying protection was afforded by Civil Rights Law § 50-a or otherwise. Undoubtedly, some information in the documents sought by NYCLU was publicly disclosed in Trial Room hearings; there is no basis to withhold that information—already made public in the hearings—from disclosure under FOIL. I agree with both parties and with Judge Rivera that FOIL contemplates the redaction of confidential information,{**
[*15]We have repeatedly recognized FOIL's strong public policy in favor of transparency and disclosure (see e.g. Matter of Friedman v Rice,
In view of that strong policy of disclosure, the majority's decision categorically to exclude final Trial Room decisions from FOIL disclosure is unjustified. A proper resolution would recognize the three-way interplay among FOIL, Civil Rights Law § 50-a, and the City's disciplinary hearing procedures, which make the Trial Room hearings public (see 38 RCNY 15-04 [g]). Any information disclosed at a public disciplinary hearing is subject to FOIL disclosure and cannot be withheld, even if that information includes personnel records protected by section 50-a. However, if the Deputy Commissioner of Trials has designated certain information as confidential, both section 50-a and the City's procedures may exempt it from disclosure{**
The Appellate Division held that, although the Trial Room proceedings are open to the public, that disclosure does not diminish an officer's interest, protected by section 50-a, in having that information kept confidential; in contrast, section 50-a and the City procedures opening the trials to the public "are distinct questions governed by distinct statutes and regulations" (
"The question of whether respondents may, in their discretion, turn over redacted decisions, is not before us (see e.g. Short,57 NY2d at 404 ['Nothing in the Freedom of Information Law . . . restricts the right of the agency if it so chooses to grant access to records within any of the statutory exceptions, with or without deletion of identifying details'])" (id. at 643 n).
By opening the Trial Room proceedings to the public, the City has chosen to disclose information relevant to that proceeding. In doing so, the City has determined that the confidentiality of an officer's identity, the nature of the charged offense, or the evidence supporting that charge—otherwise protected by section 50-a—is of insubstantial weight compared to the countervailing interest in public disclosure. Neither party here suggests that the City has acted beyond its authority in doing so, or that such disclosure violates section 50-a in the first place. Subsequent disclosure of the same information under FOIL cannot, therefore, undermine those same concerns. Having decided to make the Trial Room hearing public, the NYPD cannot reasonably claim that those portions of the final decision that reveal only what was publicly revealed in the hearing are exempt under section 50-a. None of our prior decisions relied on by the majority remotely suggests that information disclosed by a governmental entity to the public, pursuant to rules promulgated by that entity, cannot be obtained by the public through a FOIL request.
The City's procedures do permit information presented in a disciplinary hearing to be kept confidential; that allowance fulfills section 50-a's requirement that an officer have the opportunity to be heard in response to a request to disclose covered personnel information. The Rules of the City of New{**
"Hearings shall be open to the public unless the Deputy Commissioner of Trials finds a legally recognizable ground for closure of all or a portion of the Hearing. The Deputy Commissioner of Trials may also exclude witnesses from the Hearing room during proceedings other than their own testimony" (38 RCNY 15-04 [g]).[*16]
Section 50-a constitutes a "legally recognizable ground" on which to keep certain information presented in a disciplinarily hearing confidential. If an officer (or other person) requests that certain information be kept confidential, the Rules empower the Deputy Commissioner of Trials to accept that request.
Such a confidentiality determination complies with section 50-a's mandate that the police officer have the opportunity to be heard on any disclosure requests. Section 50-a contains two exceptions to its general confidentiality requirement: personnel records may be disclosed if the officer consents to disclosure (see Civil Rights Law § 50-a [1]), or if a court authorizes disclosure (see Civil Rights Law § 50-a [3]). The law establishes a procedure to obtain a court order, aimed to protect the interests of an officer whose records are the subject of a disclosure request: in order to authorize the release of personnel records protected by section 50-a, "the judge must review all such requests and give interested parties the opportunity to be heard" (Civil Rights Law § 50-a [2]). In a disciplinary hearing, the subject officer is represented by counsel and has the opportunity to ask that any information be kept confidential; by failing to request confidentiality for certain information at a public hearing, an officer has consented—or at least has waived the right to consent—to public disclosure. If the officer does request confidentiality, the Deputy Commissioner's determination to deny that request and disclose the information publicly is, in effect, a court order. In either case, the officer has had an opportunity to be heard.
Accordingly, I disagree with the majority's conclusion that final Trial Room decisions are categorically exempt from FOIL. Because the City has made a decision to reveal some information to the public as part of those proceedings, in cannot withhold that same information when another party seeks to obtain{**
The proper way to consider what the NYPD must produce is to compare each Trial Room decision with the confidentiality determinations, if any, made by the Deputy Commissioner of Trials during that proceeding. If, for example, the Deputy Commissioner did not close the proceeding when the name of the officer was discussed, that information could not be redacted in responding to a FOIL request, and any other information that the NYPD sought to withhold based on the fact that it might disclose the officer's name could also not be withheld. On the other hand, if the Deputy Commissioner closed the hearing for discussion of an officer's alcoholism and treatment, the NYPD should redact that information from any documents sought in a FOIL request.
My approach fully addresses the majority's concern that too broad an interpretation of FOIL's policy for transparency would allow third parties to use FOIL to override statutory protections for other types of information, such as police records on victims of sex offenses, medical records, prospective jurors or attorney work product. I agree that "[n]othing in FOIL authorizes a petitioner—or a government agency—to exercise 'absolute discretion' to override these critical statutory protections or their promise of confidentiality" (majority op at
568).[FN3] Allowing FOIL [*17]disclosure of information previously disclosed to the public at a disciplinary hearing, while allowing redaction of information kept confidential at the hearing, allows no such{**
Accordingly, I would reverse and remit for redactions made to excise only such information as was deemed confidential by the Deputy Commissioner of Trials in each of the subject Trial Room hearings.
Chief Judge DiFiore and Judges Fahey and Feinman concur; Judge Stein concurs in result in an opinion; Judge Rivera dissents in an opinion; Judge Wilson dissents in a separate dissenting opinion.
Order affirmed, with costs, and certified question not answered as unnecessary.
Footnote 1:Pursuant to a Memorandum of Understanding executed in 2012 by the CCRB and the NYPD, most substantiated complaints are now prosecuted by the CCRB (see 38 RCNY 15-12).
Footnote 2:The statute also permits disclosure to certain government agencies that require access to carry out their official functions (Civil Rights Law § 50-a [4]).
Footnote 3:Section 50-a's mandatory confidentiality provision is also unaffected by the "crucial fact" that NYPD disciplinary hearings are open to the public (Wilson, J., dissenting op at 588). Even if a New York City regulation could displace a state law (it cannot), the fact that "some information" in a record has, at some time, been "publicly disclosed" does not automatically surrender its confidentiality (Wilson, J., dissenting op at 588). For instance, records containing "[t]he identity of any victim of a sex offense" must be kept "confidential" from public inspection (Civil Rights Law § 50-b [1]), even though courts are not required "to exclude the public from any stage of the criminal proceeding" involving a sex offense (Civil Rights Law § 50-b [4]). Nor would the dissent's proposal create sound policy. Instead, it would perversely discourage municipalities from allowing public hearings, and encourage officers to seek confidential treatment of their hearings, in order to avoid any implication that they have somehow "consented" to broader public disclosure (Wilson, J., dissenting op at 591). The result would be less disclosure, not more.
Footnote 4:Notably, FOIL's federal counterpart contains a much broader redaction provision that allows for redacted disclosure under any of Freedom of Information Act's enumerated exemptions (see 5 USC § 552 [b] ["Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection"]). Even though a number of FOIL's provisions were "patterned after the Federal analogue" (Matter of Lesher v Hynes,
Footnote 5:Contrary to the dissent's contention (Rivera, J., dissenting op at 587), the holdings of Short and Karlin—and our holding today—apply only to Public Officers Law § 87 (2) (a), the FOIL exemption at issue. To the extent another FOIL exemption might authorize redaction as a means of separating "exempt" from "non-exempt" material within a record (see Matter of Xerox Corp. v Town of Webster,
Footnote 1:The enumerated exemptions consist of records or portions thereof that
"(a) are specifically exempted from disclosure by state or federal statute;
"(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;
"(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
"(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;
"(e) are compiled for law enforcement purposes . . . ;
"(f) if disclosed could endanger the life or safety of any person;
"(g) are inter-agency or intra-agency materials . . . ;
"(h) are examination questions or answers which are requested prior to the final administration of such questions . . . [;]
"(i) if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets . . . [;]
"(o) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-e of the vehicle and traffic law" (Public Officers Law § 87 [2] [a]-[i], [o]).Footnote 2:Other states with similar freedom of information statutes also interpret exemptions to such laws as defining an agency's obligations to disclose rather than imposing a duty to withhold (see e.g. Data Tree, LLC v Meek, 279 Kan 445, 455,
Footnote 3:The three statutes at issue were Public Health Law §§ 2803-c (3) (f), 2805-g (3), and Social Services Law § 369 (3) (Short,
Footnote 4:The majority argues that the use of redactions for other exemptions is irrelevant as the holdings of Short and Karlin applied solely to Public Officers Law § 87 (2) (a). The majority's assertion fails to recognize the reasoning of Short, which essentially held that redactions are applicable only to statutory exemptions that expressly allow for them (Short,
In addition, the majority suggests that I take issue with Short and Karlin because those cases make bad policy (majority op at
570). The same could be said of the majority's reading of Daily Gazette's interplay analysis. However, my disagreement with the majority's reading of Short and Karlin is not policy based. These cases should not be followed because the reasoning in Short has since been undermined and both cases are inapplicable to the question of whether section 50-a records may be disclosed under Public Officers Law § 87 (2). Far from advocating for "judicial revision of FOIL," as the majority implies (majority op at
570), I maintain that we follow this Court's prior ruling that section 50-a "be tempered" when it interacts with FOIL (Daily Gazette,
Footnote 1:Neither party argues that the final Trial Room decisions are exempt from FOIL. The parties agree that FOIL requires redaction; the NYPD does not argue that the documents are not disclosable under FOIL but instead maintains that disclosure is permitted "only when it is clearly possible to do so without risking disclosure of the identities of the officers at issue," in order to reconcile the competing concerns of transparency, advanced by FOIL, and privacy, advanced by Civil Rights Law § 50-a.
Footnote 2:Contrary to the NYPD's argument, the sample redactions it provided are not "unintelligible," nor do they appear to "present a decontextualized, and thus misleading, representation of the decision's reasoning." I have read them in redacted and unredacted form and find nothing misleading about the redacted versions. For reasons I explain herein, these are not the correct redactions in any event.
Footnote 3:The majority's footnote 3 misunderstands the function of Civil Rights Law § 50-b (4) (see majority op at 568 n 3). Section 50-b (1) protects certain information from disclosure. Although section 50-b (4) specifies that courts are not required "to exclude the public from any stage of the criminal proceeding" involving a sex offense, that subdivision does not authorize the disclosure of information protected by section 50-b (1) in a proceeding in open court. Instead, it simply provides that a court need not remove spectators from a proceeding as its sole method for complying with section 50-b (1). A court has myriad other methods at its disposal to keep confidential information protected by section 50-b (1); for instance, it could instruct counsel to refrain from raising that information in its examination of a witness; it could enter into the record sealed stipulations of those facts, or it could accept into evidence documents establishing the facts, which could then be sealed, with redacted versions on the public record.
Footnote 4:Nor does allowing such disclosure "discourage municipalities from allowing public hearings" (majority op at 568 n 3); hearings like the Trial Room would remain public, save for select portions that would disclose information protected by section 50-a.