| Matter of Hearst Corp. v New York State Police |
| 2015 NY Slip Op 07729 [132 AD3d 1128] |
| October 22, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Hearst Corporation et al., Appellants, vNew York State Police, Respondent, et al., Respondent. |
Jonathan Donnellan, The Hearst Corporation, New York City, for appellants.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Zwack, J.), enteredMay 9, 2014 in Albany County, which dismissed petitioners' application, in a proceedingpursuant to CPLR article 78, to review a determination of respondent New York StatePolice denying petitioners' Freedom of Information Law request.
Petitioner Hearst Corporation owns and publishes the Albany Times Union andpetitioner Brendon Lyons is a professional journalist employed thereby. Lyons submitteda request pursuant to the Freedom of Information Law (Public Officers Law art 6[hereinafter FOIL]) for the disclosure of all records relating to an alleged hit-and-runincident committed by respondent Brian T. Beardsley, a State Trooper who was off duty.Respondent New York State Police (hereinafter respondent) denied the request and,following an unsuccessful administrative appeal, petitioners commenced this CPLRarticle 78 proceeding seeking a judgment directing respondent to turn over the requestedrecords, as well as costs and counsel fees. Petitioners initially named only respondent,and Supreme Court granted respondent's motion to dismiss the petition on the groundsthat petitioners had failed to name Beardsley as a necessary party and the records wereexempt from disclosure pursuant to Civil Rights Law § 50-a (1) as"personnel records." This Court reversed, finding that respondent had not establishedentitlement to the exemption at that procedural stage, and further finding that, althoughBeardsley was a necessary party, dismissal was not required as his joinder could be [*2]directed by court order (109 AD3d 32, 36-37 [2013]).
On remittal, petitioners, by amended notice and petition, joined Beardsley. SupremeCourt held a hearing, at which Beardsley was in attendance, though he did not formallyappear. Respondent identified, by affidavit of its FOIL officer, categories of recordspertaining to the alleged incident, all of which, according to him, were collected orproduced in an internal investigation pursuant to 9 NYCRR part 479. Supreme Court didnot review such records in camera. The court thereafter found that all of the identifiedrecords were exempt from disclosure pursuant to Civil Rights Law § 50-a(1) and dismissed the petition on that basis. Petitioners now appeal.
"[P]ursuant to FOIL's general mission, which is to promote open government andpublic accountability, a government agency must make its records available to the publicunless an exemption expressly provides otherwise" (Matter of Columbia-Greene Beauty Sch., Inc. v City of Albany,121 AD3d 1369, 1370 [2014]; see Public Officers Law§§ 84, 87 [2]). "[E]xemptions are to be narrowly interpreted so that thepublic is granted maximum access to the records of government" (Matter of Data Tree, LLC vRomaine, 9 NY3d 454, 462 [2007]) and, thus, the party opposing disclosurebears the burden of establishing that the requested information "fall[s] squarely within astatutory exemption" (Matter ofCapital Newspapers Div. of the Hearst Corp. v City of Albany, 15 NY3d 759,761 [2010]; see Public Officers Law § 89 [4] [b]). As is relevanthere, Civil Rights Law § 50-a (1) exempts from disclosure the "personnelrecords" of police officers that are "used to evaluate performance toward continuedemployment or promotion."
Initially, we reject petitioners' contention that information created or collectedpursuant to a misconduct investigation is not protected by Civil Rights Law§ 50-a (1) unless respondent can establish that it was thereafter actuallyrelied on in a decision-making process related to the relevant officer's continuedemployment or promotion. Proof that information was generated for the purpose ofassessing an employee's alleged misconduct brings that information within the protectionof Civil Rights Law § 50-a (1) (see Matter of Cook v Nassau County Police Dept., 110 AD3d718, 720 [2013]; Matter ofCarnevale v City of Albany, 68 AD3d 1290, 1293 [2009]; Matter of Argentieri v Goord,25 AD3d 830, 832 [2006]). This does not end our inquiry, however, becauseuncontested evidence established that respondent's investigation of Beardsley continuedafter he had resigned as an employee of respondent. We agree with petitioners that policedepartments who investigate persons who are no longer their employees are notconducting investigations of "personnel" within the meaning of Civil Rights Law§ 50-a (1). The plain meaning of the word personnel identifies individualswith some current employment relationship with an organization. This meaning ofpersonnel is further confirmed by the statute, as individuals who are not currentemployees cannot be considered for either "continued employment or promotion" (CivilRights Law § 50-a [1]). Accordingly, Supreme Court erred in finding thatrespondent met its burden of establishing that the materials resulting from itsinvestigation after Beardsley had resigned were for the purpose of assessing hiscontinued employment or promotion and that, as a result, Civil Rights Law§ 50-a (1) provided confidentiality to such materials.
Having concluded that Supreme Court erred in dismissing the petition upon a findingthat all requested information fell within Civil Rights Law § 50-a (1), weare constrained from addressing respondent's alternative arguments for affirmance thatadditional exceptions to FOIL respectively apply to some or all of the requestedinformation. We are unable to determine whether withheld materials fall within the scopeof those asserted exemptions given that those materials are not within the record for ourin camera review. Accordingly, we remit for consideration of such arguments after an incamera review of the responsive materials (see [*3]Matter of Xerox Corp. v Town of Webster, 65 NY2d131, 133 [1985]; Matter of Rosev Albany County Dist. Attorney's Off., 111 AD3d 1123, 1126 [2013]; Matterof DJL Rest. Corp. v Department of Bldgs. of City of N.Y., 273 AD2d 167, 169[2000]). Petitioners' remaining arguments are either academic, without merit orpremature.
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is modified, onthe law, without costs, by reversing so much thereof as found that materials created oracquired after respondent Brian T. Beardsley's resignation were exempt pursuant to CivilRights Law § 50-a (1); matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision; and, as so modified,affirmed.