| Matter of New York Civ. Liberties Union v New York City PoliceDept. |
| 2017 NY Slip Op 02506 [148 AD3d 642] |
| March 30, 2017 |
| Appellate Division, First Department |
[*1]
| In the Matter of New York Civil Liberties Union,Respondent, v New York City Police Department et al.,Appellants. |
Zachary W. Carter, Corporation Counsel, New York (Aaron M. Bloom of counsel), forappellants.
New York Civil Liberties Union Foundation, New York (Christopher Dunn of counsel), forrespondent.
Media Freedom & Information Access Clinic, Abrams Institute for Freedom ofExpression, Yale Law School, New York (David A. Schulz of counsel), for The New YorkTimes Company, Advance Publications, Inc., The Associated Press, Inc., Daily News L.P., DowJones & Company, Inc., Gannett Co., Inc., Hearst Corporation, Newsday LLC, News 12Networks LLC and NYP Holdings, Inc., amici curiae.
Judgment, Supreme Court, New York County (Shlomo Hagler, J.), entered April 21, 2015,adhering to orders, same court (Geoffrey D. Wright, J.), entered October 16, 2012, July 29, 2014,and October 2, 2014, which, insofar as appealed from as limited by the briefs, granted, to alimited extent, the petition brought pursuant to CPLR article 78 seeking to compel respondents todisclose certain records pursuant to the Freedom of Information Law (FOIL), unanimouslyreversed, on the law, the petition denied, and the proceeding dismissed, without costs.
Public Officers Law § 87 (2) (a) provides that an agency "may deny access torecords" that "are specifically exempted from disclosure by state . . . statute." TheNYPD disciplinary decisions sought here fall within Civil Rights Law § 50-a,which makes confidential police "personnel records used to evaluate performance towardcontinued employment or promotion" (see Matter of Daily Gazette Co. v City ofSchenectady, 93 NY2d 145 [1999]; Matter of Prisoners' Legal Servs. of N.Y. v NewYork State Dept. of Correctional Servs., 73 NY2d 26 [1988]).
The fact that NYPD disciplinary trials are open to the public (38 RCNY 15-04 [g]) does notremove the resulting decisions from the protective cloak of Civil Rights Law § 50-a(see Matter of Newsday, Inc. v Sise, 71 NY2d 146, 153 [1987], cert denied 486US 1056 [1988]). Whether the trials are public and whether the written disciplinary decisionsarising therefrom are confidential are distinct questions governed by distinct statutes andregulations (see Matter of Doe v City ofSchenectady, 84 AD3d 1455, 1459 [3d Dept 2011]). Further, the disciplinary decisionsinclude the disposition of the charges against the officer as well as the punishment imposed,neither of which is disclosed at the public trial.
In Matter of Short v Board of Mgrs. of Nassau County Med. Ctr. (57 NY2d 399,401[*2][1982]), the Court of Appeals held that where, as here,there is a "specific exemption from disclosure by State . . . statute," an agency is notrequired to disclose records with identifying details redacted. The Court of Appeals subsequentlyreaffirmed this principle in Matter of Karlin v McMahon (96 NY2d 842, 843 [2001]),where the agency responding to a FOIL request invoked the statutory exemption for documentsthat tend to identify the victim of a sex offense (Civil Rights Law § 50-b [1]). TheCourt of Appeals, citing Short, held that the agency was not obligated to provide therecords "even though redaction might remove all details which tend to identify the victim"(Karlin, 96 NY2d at 843 [internal quotation marks omitted]). In view of this controllingprecedent, this Court cannot order respondents to disclose redacted versions of the disciplinarydecisions.[FN*]
Petitioner's reliance on Daily Gazette in support of its request for redacted decisionsis unavailing. In that case, the Court of Appeals concluded that Civil Rights Law§ 50-a barred the disclosure of records regarding disciplinary action taken against18 police officers. Although the Court made brief reference to the hypothetical possibility ofredaction, it did so in dicta, and did not address whether ordering the redaction and disclosure ofdocuments protected by section 50-a could be reconciled with the holding in Short.Further, despite having mentioned redaction, the Court in Daily Gazette dismissed thearticle 78 FOIL petitions in their entirety, and did not order disclosure of redacted records. Thereis no merit to petitioner's contention that the holding in Short was abrogated by DailyGazette. As noted earlier, Short was reaffirmed by Karlin, which came downtwo years after Daily Gazette, and we have no choice but to follow Short andKarlin.
Respondents' previous disclosure of other redacted records did not waive their objections toredacting the disciplinary decisions at issue here (see Matter of City of New York v City Civ.Serv. Commn., 60 NY2d 436, 449 [1983] ["estoppel may not be applied to preclude a. . . municipal agency from discharging its statutory responsibility"]; Matter of Mazzone v New York State Dept.of Transp., 95 AD3d 1423, 1424-1425 [3d Dept 2012] [agency's right to claim FOILexemption not waived where documents are inadvertently disclosed]).
Our decision in Matter of New YorkCiv. Liberties Union v New York City Police Dept. (74 AD3d 632 [1st Dept 2010])does not require a different result because in that case, unlike here, the FOIL request was limitedto one narrow category of statistical data. Because the only issue presented in this appeal iswhether respondents are required to disclose the redacted written disciplinary decisionsthemselves, we make no determination as to whether any information contained in thosedecisions can, consistent with section 50-a, be disclosed in another format or by a differentmethod.
We appreciate the various policy arguments made by petitioner and amici curiae, and agreethat the public has a compelling interest in ensuring that respondents take effective steps tomonitor and discipline police officers. Likewise, we recognize that the principles ofconfidentiality that underlie section 50-a may very well be protected by the redaction ofidentifying details from the disciplinary decisions sought here. However, as an intermediate [*3]appellate court, we cannot overrule the Court of Appeals' decisionsin Short and Karlin, and are obligated to reverse based on this controllingprecedent. The remedy requested by petitioner must come not from this Court, but from thelegislature or the Court of Appeals. Concur—Friedman, J.P., Renwick, Richter,Moskowitz and Kapnick, JJ.
Footnote *:The question of whetherrespondents may, in their discretion, turn over redacted decisions, is not before us (seee.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 thestatutory exceptions, with or without deletion of identifying details"]).