| Matter of Cook v Nassau County Police Dept. |
| 2013 NY Slip Op 06364 [110 AD3d 718] |
| October 2, 2013 |
| Appellate Division, Second Department |
| In the Matter of John Cook,Appellant-Respondent, v Nassau County Police Department et al.,Respondent-Appellant. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Jackie L. Gross of counsel), forrespondents-appellants.
In a proceeding pursuant to CPLR article 78, in effect, to review a determination ofIsrael Santiago, Commanding Officer of the Legal Bureau of the Nassau County PoliceDepartment, dated September 27, 2011, which affirmed a determination of KarenTaggart, Deputy County Attorney assigned to the Legal Bureau of the Nassau CountyPolice Department dated August 18, 2011, denying disclosure of certain documentspursuant to the Freedom of Information Law (Public Officers Law art 6), the petitionerappeals, as limited by his brief, from so much of a judgment of the Supreme Court,Nassau County (Winslow, J.), dated February 2, 2012, as, in effect, denied that branch ofhis petition which was to compel the disclosure of certain Nassau County PoliceDepartment internal affairs investigation records and, in effect, dismissed that portion ofthe proceeding, and the Nassau County Police Department, Thomas C. Krumpter, asActing Commissioner of the Nassau County Police Department, and Israel Santiago, asCommanding Officer of the Legal Bureau of the Nassau County Police Department,cross-appeal, as limited by their brief, from so much of the same judgment, as, in effect,granted those branches of the petition which were to direct them to disclose certainletters, redacted email messages, and a redacted one-page record from an internal affairsinvestigation.
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
The Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) wasenacted "to promote open government and public accountability" and "imposes a broadduty on government to make its records available to the public" (Matter of Gould vNew York City Police Dept., 89 NY2d 267, 274 [1996]; see Matter of Town of Waterford vNew York State Dept. of Envtl. Conservation, 18 NY3d 652, 656-657 [2012]).Under FOIL, government records are presumptively open for public inspection unlessthey fall within one of the exceptions specified by Public Officers Law § 87 (2),which permits an agency to deny access, inter alia, to records which "are specificallyexempted from disclosure by state or federal statute" (Public Officers Law § 87 [2][a]; see Matter of Gould v New York City Police Dept., 89 NY2d at 274-275; Matter of Hearst Corp. v NewYork State Police, 109 AD3d 32 [2013]). One such statute exempting recordsfrom disclosure is Civil Rights [*2]Law § 50-a (1),which provides, in relevant part, that "[a]ll personnel records used to evaluateperformance toward continued employment or promotion" of police officers "shall beconsidered confidential and not subject to inspection or review." However, "when accessto an officer's personnel records relevant to promotion or continued employment issought under FOIL, nondisclosure will be limited to the extent reasonably necessary toeffectuate the purposes of Civil Rights Law § 50-a—to prevent the potentialuse of information in the records in litigation to degrade, embarrass, harass or impeachthe integrity of the officer" (Matter of Daily Gazette Co. v City of Schenectady,93 NY2d 145, 157-158 [1999]).
Contrary to the petitioner's contention, the Supreme Court properly determined, afteran in camera inspection, that the only portion of an internal affairs investigation reportwhich should be disclosed pursuant to FOIL was a redacted one-page "Citizen ComplaintSummary." The internal investigation report is a personnel record within the ambit ofCivil Rights Law § 50-a, and the withheld portion of the report could not bedisclosed in redacted form in a manner that would alleviate the "substantial and realisticpotential" that the information could be used in litigation to embarrass or humiliate thepolice officer who is the subject of the report (Matter of Daily Gazette Co. v City ofSchenectady, 93 NY2d at 159; see Matter of Prisoners' Legal Servs. of N.Y. vNew York State Dept. of Correctional Servs., 73 NY2d 26, 31-32 [1988]).
We reject the contention of the Nassau County Police Department, Thomas C.Krumpter, as Acting Commissioner of the Nassau County Police Department, and IsraelSantiago, as Commanding Officer of the Legal Bureau of the Nassau County PoliceDepartment (hereinafter collectively the Nassau County parties), that the redacted"Citizen Complaint Summary" also should have been shielded from disclosure pursuantto Civil Rights Law § 50-a (1). That portion of the internal investigation report, asredacted, does not "contain any invidious implications capable facially of harassment ordegradation of the officer in a courtroom" (Matter of Daily Gazette Co. v City ofSchenectady, 93 NY2d at 158; see Matter of Capital Newspapers Div. of HearstCorp. v Burns, 67 NY2d 562, 569 [1986]).
Further, contrary to the contention of the Nassau County parties, it is unnecessary toremit this matter to the Supreme Court to clarify what information is to be redacted fromcertain email messages it determined to be subject to disclosure. The Supreme Court'sstatements on the record provide sufficient guidance as to the extent of the redactions tobe made.
The remaining contentions of the Nassau County parties are without merit. Eng, P.J.,Balkin, Roman and Miller, JJ., concur.