| Matter of Capital Newspapers Div. of Hearst Corp. v City ofAlbany |
| 2009 NY Slip Op 04789 [63 AD3d 1336] |
| June 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Capital Newspapers Division of the HearstCorporation et al., Appellants, v City of Albany et al., Respondents. |
—[*1] John J. Reilly, Corporation Counsel, Albany (Jeffrey V. Jamison of counsel), for City ofAlbany, respondent. Ennio J. Corsi, Counsel 82, AFSCME, AFL-CIO, Albany (Matthew P. Ryan of counsel), forAlbany Police Officers Union, Local 2841 of New York State Law Enforcement Officers Union,District Council 82, AFSCME, AFL-CIO, respondent.
Kane, J. Appeal from a judgment of the Supreme Court (McDonough, J.), entered July 23,2008 in Albany County, which partially granted petitioners' application, in a proceeding pursuantto CPLR article 78, to annul two determinations of respondent City of Albany denyingpetitioners' Freedom of Information Law requests.
In January 2006, petitioner Brendan Lyons, a senior writer for the Albany Times Union,filed two requests under the Freedom of Information Law (see Public Officers Law art 6[hereinafter FOIL]) with respondent City of Albany. The FOIL requests sought documentspertaining to the alleged use of official Albany Police Department channels to purchasemilitary-style assault rifles for personal, nonofficial use by a number of individual police officersin the 1990s. The City denied the FOIL requests based upon an exemption for inter-agency orintra-agency materials (see Public Officers Law § 87 [2] [g]). On administrativeappeal by Lyons and his employer, the City's records appeals officer released one document butupheld denial as to the remaining documents based upon the exemptions for inter-agency orintra-agency materials and records which could endanger a person's life or safety (seePublic Officers Law § 87 [2] [f], [g]).[*2]
In August 2006, petitioners commenced this proceedingchallenging the City's determination (see Public Officers Law § 89 [4] [b]). AfterSupreme Court (Hard, J.) denied the City's motion to dismiss the petition, the City answered. InOctober 2007, respondent Albany Police Officers Union moved to intervene. The court grantedthe motion without opposition. The Union opposed disclosure of documents under Civil RightsLaw § 50-a. In June 2008, Supreme Court (McDonough, J.) held that many of thedocuments could be disclosed, but that any documents or portions thereof which identified policeofficers were exempt from disclosure under Civil Rights Law § 50-a. Petitionersappeal.[FN1]
While agency records are presumptively available for public inspection and disclosure underFOIL (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562,566 [1986]; Matter of Beyah v Goord, 309 AD2d 1049, 1049 [2003]), an agency maydeny access to records which "are specifically exempted from disclosure by state or federalstatute" (Public Officers Law § 87 [2] [a]). One such exemption is found in Civil RightsLaw § 50-a (1), which provides that "[a]ll personnel records, used to evaluate performancetoward continued employment or promotion, under the control of any police agency. . . shall be considered confidential and not subject to inspection or review." TheCity has the burden of proving that the exemption applies (see Public Officers Law§ 89 [4] [b]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2dat 566; Matter of Beyah v Goord, 309 AD2d at 1050).
To determine whether the "gun tags" are exempt from disclosure under these statutes, wemust first decide if they are "personnel records." Civil Rights Law § 50-a does notextensively define or qualify what documents constitute "personnel records," other thanrequiring that they be under a police agency's control and be used to evaluate the employee'sperformance for continued employment or promotion (see Matter of Prisoners' Legal Servs.of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26, 31 [1988]). The Courtof Appeals has clarified that personnel records include those documents "containing personal,employment-related information about a public employee . . . ; are received,processed and maintained as part of a [public employer's] operations; and . . . 'areclearly relied upon in evaluating the employee's performance' " (id. [citations omitted];see Matter of Argentieri v Goord,25 AD3d 830, 831 [2006]). "[W]hether a document qualifies as a personnel record underCivil Rights Law § 50-a (1) depends upon its nature and its use in evaluating an officer'sperformance" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. ofCorrectional Servs., 73 NY2d at 32). Documents pertaining to an officer's misconduct arethe type of records specifically intended to be kept confidential under the statute, mainly toprevent use of the records in litigation to harass, embarrass, degrade or impeach an officer'sintegrity (see Matter of Daily Gazette Co. v City of [*3]Schenectady, 93 NY2d 145, 157-158 [1999]; Matter ofPrisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d at31-32; Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218AD2d 494, 497-498 [1996]; see also Matter of Argentieri v Goord, 25 AD3d at831-832).
The gun tags that include the names of current or former police officers are personnelrecords.[FN2]Although these documents each contain only an individual's name and a gun serial number, whencoupled with other information they may be used to implicate officers inmisconduct—namely illegal personal possession of assault rifles and misuse of the City'stax-exempt status to avoid excise taxes when purchasing the guns. According to the City's chiefof police, documents in the investigative file concerning this gun scandal would be used toevaluate continued employment and promotion of officers. As the gun tags are the type ofdocuments that, when considered in conjunction with other investigative records, could be usedto impose discipline or affect continued employment or promotions—whether or not theywere actually used for that purpose[FN3]—they constitute personnel records (compare Matter of Argentieri v Goord, 25AD3d at 831-832; Matter of Ruberti, Girvin & Ferlazzo v New York State Dept. of StatePolice, 218 AD2d at 497-498).
While the gun tags are personnel records, redacting the names of any current or formerpolice department employees would adequately protect the individual officers. Accordingly, theCity must disclose the redacted gun tags (see Matter of Humane Socy. of U.S. v Empire State Dev. Corp., 53AD3d 1013, 1018 [2008], lv denied 12 NY3d 701 [2009]; compare PublicOfficers Law § 89 [2] [c] [i]).
Supreme Court did not abuse its discretion in denying petitioners' request for counsel fees.The court "may" award counsel fees and costs to a party who substantially prevails in aproceeding challenging a FOIL denial where the records involved were of clearly significantinterest to the general public and the agency had no reasonable basis in law for withholding therecords (Public Officers Law § 89 [4] [c]; see Matter of Henry Schein, Inc. v Eristoff, 35 AD3d 1124,1125-1126 [2006]). Even if all of the statutory requirements are met, however, "an award ofcounsel fees still lies within the sound discretion of the trial court" (Matter of Grace vChenango County, 256 AD2d 890, 891-892 [1998]; see Matter of Henry Schein, Inc. vEristoff, 35 AD3d at 1126; Matter of Corvetti v Town of Lake Pleasant, 239 AD2d841, 843 [1997]). [*4]Here, we cannot say that the court abusedits discretion.
Cardona, P.J., and Lahtinen, J., concur.
McCarthy, J. (concurring in part and dissenting in part). We agree with the majority'sanalysis that, as to current members of the Albany Police Department, respondent City of Albanymet its burden of demonstrating that the subject gun tags are personnel records within themeaning of Civil Rights Law § 50-a (1) and the litany of cases interpreting it (see e.g.Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145 [1999]; Matter ofPrisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26[1988]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562[1986]; Matter of Argentieri vGoord, 25 AD3d 830 [2006]; Matter of Ruberti, Girvin & Ferlazzo v New YorkState Div. of State Police, 218 AD2d 494 [1996]). We also agree with the majority's findingthat any gun tag containing the name of an individual who is not a current or former employee ofthe Albany Police Department cannot be considered a personnel record under Civil Rights Law§ 50-a (1) and, therefore, must be disclosed without redaction. However, we are unable toagree with the majority's finding that, as to former members of the Albany PoliceDepartment, the City met its burden of demonstrating that the subject gun tags are indeedpersonnel records within the meaning of Civil Rights Law § 50-a (1). In our view, any guntag containing the name of an individual who is no longer employed by the Albany PoliceDepartment cannot be considered a personnel record under Civil Rights Law § 50-a (1)(see Comm on Open Govt FOIL-AO-12423 [2000]) and, therefore, must also bedisclosed without redaction. It is on this basis that we respectfully dissent.
There can be no dispute that the City bore the burden of proving that the Civil Rights Law§ 50-a (1) exemption applied to the information sought by petitioner Brendan Lyons(see Public Officers Law § 89 [4] [b]). Indeed, "the agency or other party opposingdisclosure of officers' personnel records carries the burden of demonstrating that the requestedinformation falls squarely within the exemption" (Matter of Daily Gazette Co. v Cityof Schenectady, 93 NY2d at 158-159 [emphasis added]; see Matter of CapitalNewspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; Matter of Fink vLefkowitz, 47 NY2d 567, 571 [1979]). Moreover, because exemption from disclosure isbeing asserted pursuant to Civil Rights Law § 50-a, the City "must demonstrate asubstantial and realistic potential" of the abusive use of the records against the policeofficers (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d at 159 [emphasisadded]). While the affidavit of the City's chief of police was sufficient to demonstrate that thisexemption applies as to current police officers, his affidavit was not sufficient to demonstrate itsapplicability to former police officers.
According to the chief of police, the subject gun tags are part of a file stemming from aninvestigation of this incident by the Albany Police Department's Office of ProfessionalStandards. The chief of police averred that investigations of this nature "are always reviewed andconsidered when evaluating and/or promoting an officer." He further averred that, while thosepolice officers allegedly involved in this incident can no longer be subject to discipline becauseof time limitations contained within the collective bargaining agreement, "the investigation filewould still be used to evaluate performance toward continued employment." While theseaverments were most appropriately relied upon by the majority in reaching its conclusion that thegun tags constitute personal records as to current police officers, they cannot be reasonably [*5]extended and applied to former police officers. Simply put, anyindividual who is no longer employed by the Albany Police Department is not being evaluated orconsidered for a "promotion" or "continued employment." Significantly, the chief of police'saffidavit is silent on the need to shield gun tags from disclosure under Civil Rights Law §50-a (1) with respect to former members of the Albany Police Department.[FN*]Any rationale now articulated or adopted would be based on pure speculation and without anyrecord support.
Giving due consideration to the well-settled precepts that "government records arepresumptively open, statutory exemptions are narrowly construed, and the [agency opposingdisclosure] must articulate a particularized and specific justification for nondisclosure" (Matter of New York Civ. Liberties Union vCity of Schenectady, 2 NY3d 657, 661 [2004] [internal quotation marks and citationsomitted]; see Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106,109-110 [1992]; Matter of M. Farbman & Sons v New York City Health & Hosps.Corp., 62 NY2d 75, 79-80 [1984]; Matter of Fink v Lefkowitz, 47 NY2d at 571), weare compelled to conclude that the City did not carry its burden of demonstrating that the guntags fall squarely within the exemption outlined under Civil Rights Law § 50-a (1) withrespect to former police officers (see Comm on Open Govt FOIL-AO-12423 [2000]).Therefore, any gun tag bearing the name of such individual should be disclosed withoutredaction.
We would, therefore, modify Supreme Court's order by reversing so much thereof as deniedthe request for the subject gun tags and require disclosure of same with only the names ofcurrent members of the police department redacted.
Peters, J., concurs. Ordered that the judgment is modified, on the law, without costs, byreversing so much thereof as denied petitioners access to the gun tags; petition granted to thatextent with the names of any current or former City of Albany Police Department employeesredacted; and, as so modified, affirmed.
Footnote 1: The judgment required the Cityto turn over redacted documents to Supreme Court within seven days. Although the record doesnot make clear what documents were turned over, with or without redaction, it appears that theonly records at issue are 42 "gun tags." While, again, the record does not make clear exactlywhat these documents actually are, the parties apparently agree that the gun tags areidentification tags put on the guns returned to the police department by individuals who had theguns in their personal possession. Those tags each contain an individual's name, a serial numberand some sort of identification number.
Footnote 2: Because of the lack of recordinformation regarding the gun tags, it is unclear whether all of the individuals whose namesappear on the gun tags are police officers. A gun tag containing the name of any individual whois not a current or former employee cannot be considered a personnel record of a police agencyand, therefore, must be disclosed without redaction.
Footnote 3: Because of time limitationscontained in the collective bargaining agreement between the City and the Union, none of theofficers involved in the gun scandal was subject to discipline concerning that situation. Neitherthis circumstance, nor the retirement or death of a police officer, deprives the tags of theircharacter as personnel records.
Footnote *: The chief of police did not, forexample, make a showing that any former police officer is still involved in an open case suchthat there was a "substantial and realistic" possibility that this information could be used inlitigation to degrade, embarrass, harass or impeach the integrity of such police officer (Matterof Daily Gazette Co. v City of Schenectady, 93 NY2d at 159). This showing was particularlycritical here since the requested information and the alleged gun purchases date back to the early1990s. It is therefore quite possible that individuals identified on any given number of gun tagshave been retired for more than a decade.