August 9, 2019
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.
I am writing in response to your request for an advisory opinion regarding the manner in which the New York City Police Department (NYPD) has responded to your Freedom of Information Law (FOIL) request for copies of body camera footage.
In response to your FOIL request for body camera footage, the NYPD denied access to the record in its entirety on several grounds. As you know, FOIL pertains to all government agency records and is based on a presumption of access. 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 (p) of the Law.
In your request for an advisory opinion, you ask the Committee to address four topics. I will address them in order. First, you ask “[w]hether Respondents can simply withhold body camera footage by invoking New York Civil Rights Law §50-a.” An agency is permitted to deny access to records, or portions thereof, that “are specifically exempted from disclosure by state or federal statute.” One such statute is Civil Rights Law §50-a, which makes confidential personnel records concerning police officers that are “used to evaluate performance toward continued employment or promotion.”
In your inquiry, you reference a First Department, Appellate Division decision regarding the application of 50-a to body camera footage. In the Matter of Patrolmen's Benevolent Assn. of the City of N.Y. v, DeBlasio et al., 171 A.D.3d 636 (2019), the Patrolmen’s Benevolent Association (PBA) challenged the City's public release of police department body-worn camera footage without a court order or the relevant officers' consent. In its decision, the Court held:
We find that given its nature and use, the body-worn camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of section 50-a (see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26, 32 ). The purpose of body-worn camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.
Although the body-worn camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes. Matter of New York Civ. Liberties Union v New York City Police Dept. (32 NY3d 556 ), which involved disciplinary matters, does not constrain this analysis. The footage, here, rather, is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes. To hold otherwise would defeat the purpose of the body-worn camera program to promote increased transparency and public accountability. (id., 637, 638)In my view, while it is clear that the Court is of the opinion that §50-a does not afford a blanket exemption for all police body camera footage, it is less clear whether §50-a can be asserted when the footage is being “used in connection with…any pending disciplinary charges or promotional processes.” (id., 638) In Patrolmen’s Benevolent Assn., the Court specifies that “the footage at issue is not a personnel record” (emphasis mine) and also that “the footage being released here is not primarily generated for, nor used in
connection with, any pending disciplinary charges or promotional processes.” (emphasis mine) In my opinion, it is likely that the Court’s use of this limiting language was intentional and the Court contemplated situations when body camera footage could be considered a personnel records, specifically when being used in connection with pending disciplinary charges or promotional processes.
Your second question relates to whether the NYPD can “withhold body camera footage by invoking Public Officers Law §87(2)(e)(i) by stating that there is an investigation when, presumably, such forage shows what it is our client experienced prior to his demise.” It is important to note that when records are accessible under FOIL, the courts have held that they should be made equally available to any person, regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of Appeals has held that:
"FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose; while its purpose may be to shed light on government decision-making, its ambit is not confined to records actually used in the decision-making process. (Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure by public agencies is, under FOIL, a public right and in the public interest, irrespective of the status or need of the person making the request" [Farbman v. New York City Health and Hospitals Corporation, 62 NY 2d 75, 80 (1984)].
Farbman pertained to a situation in which a person involved in litigation against an agency requested records from that agency under FOIL. It was found that an individual’s status as a litigant had no effect upon that person's right as a member of the public when using FOIL, irrespective of the intended use of the records. As such, your role as the attorney for the deceased’s family does not afford you additional rights to law enforcement records under FOIL than those enjoyed by the general public.
Your third question posed asks “[w]hether Criminal Procedure Law §160.50 is applicable to body camera footage…” The Committee on Open Government is authorized to provide advice regarding FOIL and the Open Meetings Law. Questions regarding the specific application of the sealing provisions of §160.50 of the Criminal Procedure Law are outside of our advisory jurisdiction.
Your last question relates to the specificity of the NYPD’s appeal response. You ask whether the agency’s “string citation in support of denial is particularized and specific reason for denial under the circumstances.” I note that §89(4)(a) of FOIL requires that, in response to a FOIL appeal, an agency must either provide the records sought or “fully explain” the reason for further denial. In my opinion, the NYPD satisfied its obligation in this regard in its response to your FOIL appeal.
The law does not require “a particularized and specific reason” be offered in response to a FOIL appeal. This language relates to an agency’s burden of proof during a Civil Practice Law and Rules Article 78 proceeding. In 1979, the Court of Appeals held that when defending a denial of access, the agency is “required to articulate particularized and specific justification and, if necessary, submit the requested materials to the court for In camera inspection, to exempt its records from disclosure…” Fink v. Lefkowitz, 47 N.Y.2d 567, 569, 393 N.E.2d 463, 464 (1979)
I hope this information proves useful.
cc: Jordan S. Mazur, NYPD FOIL Appeals Officer