July 5, 2016

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 correspondence, except as otherwise indicated.


We have received your correspondence in which you seek an advisory opinion relating to a request for certain records of the New York City Police Department.

The records sought are “personnel orders” that briefly indicate outcomes of disciplinary hearings involving the conduct of police officers and that have “been publicly posted on a clipboard outside the Deputy Commissioner of Public Information’s office for years.” You added that “reporters confirm that the NYPD regularly publishes and posts personnel records for public inspection by the media”, and that you are not seeking “confidential information”, but rather information that has already been provided to reporters for years.” The Department’s records access officer denied access, citing §87(2)(e) of the Freedom of Information Law (FOIL) and §87(2)(a), “in that such records consist of Police Officer’s personnel records and therefore are exempt under the provisions of Civil Rights Law Section 50-a.”

In this regard, I offer the following comments.

First, as a general matter, FOIL 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 (l) of the law. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In our view, the phrase quoted in the preceding sentence evidences recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" [89 NY2d 267, 275 (1996)].

Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), an exception different from that cited in response to your request. The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:

" invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).”

The first exception cited in the denial of your request pertains to records “compiled for law enforcement purposes”. As I understand the nature of the records sought, they are prepared largely for administrative purposes and not for any law enforcement purpose. Even if they could be characterized having been compiled for a law enforcement purpose, due in part to the absence of substantial detail, it does not appear that the harmful effects of disclosure described in subparagraphs (i) through (iv) of §87(2)(e) would arise. Because the orders list determinations involving misconduct, it is difficult to envision how disclosure could interfere with a law enforcement investigation or judicial proceeding, deprive an officer of a fair trial or impartial adjudication, identify a confidential source, or reveal other than routine investigative techniques or procedures.

In short, it does not appear that §87(2)(e) may justifiably be asserted as a basis for denying access. Again, the state’s highest court has held that exceptions to rights of access must be narrowly construed. Reliance on the cited provision involves an expansive and improper reliance interpretation of FOIL.

The other exception cited by the Department relates to §87(2)(a) of FOIL, which pertains to records that are “specifically exempted from disclosure by state or federal statute”, and which is coupled with §50-a of the Civil Rights Law. Section 50-a, as you are aware, pertains to personnel records concerning police officers that are “used to evaluate performance toward continued employment or promotion”.

The issue involves whether the kind of document at issue can be characterized as a personnel record, and if so, whether it is used to evaluate performance toward continued employment or promotion. In my experience, personnel records typically relate to a single individual and may involve or include a variety of attributes or items concerning his or her employment. Often they are found within a file or similar grouping of records focusing on a particular employee. The record in question, which is, according to your letter, posted in a clipboard in a location where it may be seen not only by employees of the Department, but also by members of the news media, might not be described as a personnel record as that term is generally used or understood. Further, it is questionable whether the record posted for others to see is in fact “used to evaluate performance”. Other records, those generally found within a personnel file that include details regarding one’s employment, such as an employee evaluation, a performance review or an analysis of the employee’s functions in relation to a particular event would likely be among those subject to the limitation concerning access or disclosure envisioned by §50-a of the Civil Rights Law. A list that briefly describes the outcomes of hearings appears to be distant from a personnel record that is used to evaluate performance toward the continued employment or promotion of a specific police officer.

Finally, by permitting members of the news media, as well as Department employees, to freely view the records sought, in my view, constitutes a waiver of the Department’s ability to deny your request. The news media serves essentially as the eyes and ears of the public, and a disclosure to the news media is, therefore, the equivalent of disclosure to the general public. Significant, too, in my opinion, is the apparent rejection of the application of §50-a of the Civil Rights Law by the Department on its own initiative. When that statute applies, it creates a prohibition regarding disclosure and confers confidentiality. By posting the record sought where it may be seen by many suggests that the Department does not consider the record to constitute a personnel record used to evaluate performance toward continued employment or promotion or that it is confidential.

In a related vein, for some forty years, a basic principle associated with FOIL is that when a record is accessible to one, it is accessible to any person, without regard to a person’s status or interest [see e.g., Burke v. Yudelson, 51 AD2d 673 (1976)]. Again, if the record sought can be or has been seen by members of the news media, I believe that it must be made available to you and the public generally.

I hope that I have been of assistance.


Robert J. Freeman Executive Director