March 16, 1999

Mr. George Dinstber
P.O. Box 1005
Smithtown, NY 11787

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your

Dear Mr. Dinstber:

I have received your letter dated February 4 that was transmitted to this office with
related materials on March 3. You have questioned the ability of the Suffolk County Police
Department to withhold records pertaining to a complaint that you made against a police

In this regard, by way of background, the Freedom of Information Law is based upon
a presumption of access. Stated differently, all records of an agency are available, except to
the extent that records or portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law.

The first ground for denial, §87(2)(a), pertains to records that "are specifically
exempted from disclosure by state or federal statute." One such statute is §50-a of the Civil
Rights Law. In brief, that statute provides that personnel records of police and correction
officers that are used to evaluate performance toward continued employment or promotion
are confidential. The Court of Appeals, the State's highest court, in reviewing the legislative
history leading to its enactment, has held that §50-a exempts records from disclosure when
a request is made in a context relating to litigation. More specifically, in a case brought by
a newspaper, it was found that:

"Given this history, the Appellate Division correctly
determined that the legislative intent underlying the enactment
of Civil Rights Law section 50-a was narrowly specific, 'to
prevent time-consuming and perhaps vexatious investigation
into irrelevant collateral matters in the context of a civil or
criminal action' (Matter of Capital Newspapers Div. of Hearst
Corp. v. Burns, 109 AD 2d 92, 96). In view of the FOIL's
presumption of access, our practice of construing FOIL
exemptions narrowly, and this legislative history, section 50-a
should not be construed to exempt intervener's 'Lost Time
Record' from disclosure by the Police Department in a non-
litigation context under Public Officers section 87(2)(a)"
[Capital Newspapers v. Burns, 67 NY 2d 562, 569 (1986)].

It was also found that the exemption from disclosure conferred by §50-a of the Civil Rights
Law "was designed to limit access to said personnel records by criminal defense counsel, who
used the contents of the records, including unsubstantiated and irrelevant complaints against
officers, to embarrass officers during cross-examination" (id. at 568).

In another decision which dealt with unsubstantiated complaints against correction
officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of
sensitive personnel records that could be used in litigation for purposes of harassing or
embarrassing correction officers" [Prisoners' Legal Services v. NYS Department of
Correctional Services, 73 NY 2d 26, 538 NYS 2d 190, 191 (1988)].

From my perspective, based on the contents of the materials that you forwarded, it
appears that the records in question would be exempt from disclosure under §50-a of the Civil
Rights Law and, therefore, §87(2)(a) of the Freedom of Information Law. I note, however,
that records otherwise deniable may be ordered disclosed by a court insofar as they are
relevant and material to an action or proceeding. Specifically, subdivisions (2) and (3) of §50-
a state that:

"2. Prior to issuing such court order the judge must review all
such requests and give interested parties the opportunity to be
heard. No such order shall issue without a clear showing of
facts sufficient to warrant the judge to request records for

3. If, after such hearing, the judge concludes there is a
sufficient basis he shall sign an order requiring that the
personnel records in question be sealed and sent directly to
him. He shall then review the file and make a determination
as to whether the records are relevant and material in the
action before him. Upon such finding the court shall make
those parts of the record found to be relevant and material
available to the persons so requesting."

I hope that the foregoing serves to clarify your understanding of the matter and that
I have been of assistance.



Robert J. Freeman
Executive Director

cc: Derrick J. Robinson