FOIL AO 19774
By electronic mail only
June 29, 2020
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.
Dear Mr. Doe,
I am writing in response to your request for an advisory opinion regarding the obligations of Monroe County (the “County”) under the Freedom of Information Law (FOIL) in connection with requests for law enforcement disciplinary records for a retired Sheriff’s Department employee.
In response to your FOIL request for the retired employee’s disciplinary records, the County denied access to the records in their entirety on the ground that disclosure would constitute an unwarranted invasion of personal privacy. The agency’s basis for this assertion was, in part:
Pursuant to Public Officer's Law § 86-6, “law enforcement disciplinary records” includes complaints, allegations, and charges against an employee. The individual being requested is no longer an employee of the Monroe County Sheriff's Office, thus, these records would not be subject to the exemption of the F.O.I.L. privacy regulations.
Until very recently, personnel records of police officers, corrections officers, and paid firefighters, that were used to evaluate performance towards continued employment and performance, were specifically exempted from disclosure by state statute (Public Officers Law § 87(2)(a) and Civil Rights Law §50-a). On June 12, 2020, Governor Andrew M. Cuomo signed into law Chapter 96 of the Laws of 2020 repealing Civil Rights Law § 50-a and amending FOIL to add certain provisions relating to law enforcement disciplinary records. Where access to personnel records of a police officer was governed by §50-a and the resulting FOIL exemption pursuant to § 87(a)(2), it is now governed completely by FOIL. As a general matter, FOIL is based upon 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to the extent that records or portions thereof fall within one or more grounds for denial appearing in § 87(2)(a) (now no longer applicable to this category of records) through (q) of the Law.
Section 87(2)(b) of FOIL permits an agency to withhold records or portions of records which “if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article . . . .” In addition, § 87 of FOIL was amended by Chapter 96 to include the following language:
4-a. A law enforcement agency responding to a request for law enforcement disciplinary records as defined in section eighty-six of this article shall redact any portion of such record containing the information specified in subdivision two-b of section eighty-nine of this article prior to disclosing such record under this article.
4-b. A law enforcement agency responding to a request for law enforcement disciplinary records, as defined in section eighty-six of this article, may redact any portion of such record containing the information specified in subdivision two-c of section eighty-nine of this article prior to disclosing such record under this article.
Under the newly-amended Law, if a FOIL request is made for “law enforcement disciplinary records,” § 87(4-a) provides that certain aspects of the records must be redacted prior to disclosure and § 87(4-b) states that certain aspects of the records may be redacted before disclosure.
As noted by the County, the term “law enforcement disciplinary records” is defined as:
any record created in furtherance of a law enforcement disciplinary proceeding including, but not limited to: (a) the complaints, allegations, and charges against an employee; (b) the name of the employee complained of or charged; (c) the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; (d) the disposition of any disciplinary proceeding; and (e) the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee.
The County appears to have taken the position that this definition only applies to the records of its current employees and is not applicable to former employees. No court has yet interpreted these new provisions of FOIL, and in the absence of such guidance, we disagree with the County’s conclusion. The language added to FOIL by Chapter 96 of the Laws of 2020 replaces confidentiality provisions of Civil Rights Law § 50-a. In a 2013 decision by the Appellate Division, Third Department, the court rejected a FOIL requester’s contention that the protections offered by § 50-a could be applied to the personnel records of former officers. The court concluded that “whether a document constitutes a personnel record under Civil Rights Law § 50-a does not hinge on whether the officer to whom it relates is a current or former employee of the agency maintaining the record.” Hearst Corp. v. New York State Police, 109 A.D.3d 32, 35 (3d Dep’t 2013). In other words, the protections of § 50-a applied to the former employees as well as current employees.
In our view, and in the absence of judicial interpretation or explanatory language in the Bill memo accompanying the Chapter 96, it follows that FOIL, and the provisions added to FOIL by the same statute that repealed § 50-a, would apply to all law enforcement disciplinary records maintained by a law enforcement agency, just as § 50-a did, regardless of the current employment status of the subject individual.
Assuming, arguendo, that a court were to determine that the definition of law enforcement disciplinary records does not apply to records of or relating to former employees, as we believe it does, the presumption of access to those records still stands. Section 50-a of the Civil Rights Law has been repealed and no longer applies to any category of records. Accordingly, the records of a former law enforcement employee are either subject to the new provisions of FOIL or the provisions of FOIL otherwise applicable to government records. A request for disciplinary records relating to a former police officer must therefore still be reviewed in the same manner that a request for disciplinary records of any other public employee is reviewed. For previously prepared advisory opinions on this subject, please refer to our FOIL Advisory Opinion Index under the key words “Disciplinary Action or Proceeding.”
Thank you for your inquiry.
Very truly yours,
/s/ Shoshanah Bewlay
cc: Todd K. Baxter, Monroe County Sheriff