Labor & Employment Law

: New York Public Personnel Law

Certain information contained in personnel records may be redacted in complying with a Freedom of Information request

Certain information contained in personnel records may be redacted in complying with a Freedom of Information request
Matter of Capital Newspapers Div. of Hearst Corp. v City of Albany, 2009 NY Slip Op 04789, Decided on June 11, 2009, Appellate Division, Third Department

The Albany Times Union [TU] reporter filed two requests under the Freedom of Information Law (Public Officers Law Article 6) with City of Albany seeking documents, including ?gun tags,? related to the alleged use of official Albany Police Department channels to purchase military-style assault rifles for personal, nonofficial use by a number of individual police officers in the 1990s. The ?gun tags? included the name of the police officer purchasing the weapon.

The City denied the TU?s FOIL requests, contending that they could be denied pursuant to the FOIL exemption for inter-agency or intra-agency materials (see Public Officers Law § 87 [2] [g]). In response to an administrative appeal filed by the TU, City's records appeals officer released one document but upheld the Police Departments refusal to supply TU with copies of the remaining documents based upon the exemptions for inter-agency or intra-agency materials and records, indicated that providing such documents could endanger an individual?s life or safety.

Ultimately Supreme Court ruled ?that many of the documents could be disclosed, but that any documents or portions thereof which identified police officers were exempt from disclosure under Civil Rights Law § 50-a.? TU appealed.

The Appellate Division said that although all agency records are presumptively available for public inspection and disclosure under FOIL, an agency may deny access to records that "are specifically exempted from disclosure by state or federal statute."* One such exemption is found in Civil Rights Law § 50-a (1), which provides that "[a]ll personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . shall be considered confidential and not subject to inspection or review."

To determine whether the "gun tags" are exempt from disclosure under these statutes, the Appellate Division said that it must first decide if they are "personnel records." The Civil Rights Law § 50-a does not specifically define or qualify what documents constitute "personnel records" except that it requires that the records be under a police agency's control and be used to evaluate the employee's performance for continued employment or promotion.

As to what constitutes a ?personnel record,? the Court of Appeals has explained that ?a personnel record under Civil Rights Law § 50-a (1) depends upon its nature and use in evaluating an officer's performance." For example, in Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, the court said that ?documents pertaining to an officer's misconduct are the type of records specifically intended to be kept confidential under the statute, mainly to prevent use of the records in litigation to harass, embarrass, degrade or impeach an officer's integrity.?

The Appellate Division decided that gun tags, which include the names of current or former police officers, are personnel records for a number of reasons, including that such information, ?when considered in conjunction with other investigative records, could be used to impose discipline or affect continued employment or promotions.? Further, said the court, regardless of whether or not they would actually used for that purpose, they constitute personnel records.

However, the court said that although the gun tags are personnel records, ?redacting the names of any current or former police department employees would adequately protect the individual officers? and ruled that the City must provide the TU with the redacted gun tags.

Judges McCarthy and Peters, agreeing with the majority?s decision with respect to excluding the ?personnel records? of active police officers but, dissenting in part, said that they were ?unable to agree with the majority's finding that, as to former members of the Albany Police Department, the City met its burden of demonstrating that the subject gun tags are indeed personnel records within the meaning of Civil Rights Law §50-a (1)? [emphasis supplied by Judge McCarthy].

In their view, ?any gun tag containing the name of an individual who is no longer employed by the Albany Police Department cannot be considered a personnel record under Civil Rights Law § 50-a (1) ? and, therefore, must also be disclosed without redaction.?

The basic concept underlying FOIL is that all government documents and records, other than those having access thereto specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law.

Frequently a FOIL request is submitted seeking information concerning the settlement of a disciplinary action taken against an employee.

Some courts have ruled that a negotiated disciplinary settlement is not a private matter protected from disclosure under FOIL as an ?employment record.? The rationale for this: an individual has no reasonable expectation of privacy with respect to the terms of the disciplinary settlement agreement. An employee's admission to much of the misconduct charged makes the agreement tantamount to a final agency determination and thus outside FOIL's privacy exemption [Anonymous v. Board of Educ. for Mexico Cent. School Dist. 162 Misc.2d 300, affd, 221 A.D.2d 1028].

On the other hand, in LaRocca v. Board of Educ. of Jericho Union Free School Dist. 220 A.D.2d 424, the Appellate Division examined a disciplinary settlement agreement in camera, and found that the release of that portion of the agreement containing references to charges that were denied and, or, not admitted by the employee or that contain the names of coworkers, would constitute an unwarranted invasion of privacy as defined in FOIL [Public Officers Law §87(2)].

The Appellate Division, ?in the interest of judicial economy,? then redacted certain portions of the settlement agreement and then returned the document to Supreme Court, Nassau County, to be released, as redacted, to LaRocca.

The Capital Newspapers decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04789.htm

Full post as published by New York Public Personnel Law on June 12, 2009 (boomark / email).