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THE FOIL REQUEST FOR THE DISCIPLINARY RECORDS OF POLICE OFFICERS SHOULD NOT HAVE BEEN CATEGORICALLY DENIED PURSUANT TO THE PERSONAL PRIVACY EXEMPTION; RATHER THE RECORDS MUST BE REVIEWED AND ANY DENIALS OR REDACTIONS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the request for the disciplinary records of police officers should not have categorically denied pursuant to the personal privacy exemption. The decision encompasses several important issues not summarized here and therefore should be consulted:

… [T]he personal privacy exemption “does not . . . categorically exempt . . . documents from disclosure”, even in the case where a FOIL request concerns release of unsubstantiated allegations or complaints of professional misconduct. In order to invoke the personal privacy exemption here, respondents must review each record responsive to petitioner’s FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of SPD [Syracuse Police Department] officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner … .

Inasmuch as respondents withheld the requested law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of the records, we conclude that respondents did not meet their burden of establishing that the personal privacy exemption applies … . Respondents further failed to establish that “identifying details” in the law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct “could not be redacted so as to not constitute an unwarranted invasion of personal privacy” … . Thus, the court erred in granting that part of respondents’ motion seeking to dismiss petitioner’s request for law enforcement disciplinary records concerning open or unsubstantiated claims of SPD officer misconduct in reliance on the personal privacy exemption under Public Officers Law § 87 (2) (b).  Matter of New York Civ. Liberties Union v City of Syracuse, 2022 NY Slip Op 06348, Fourth Dept 11-10-22

Similar issues in: Matter of New York Civ. Liberties Union v City of Rochester, 2022 NY Slip Op 06346, Fourth Dept 11-10-22

Practice Point: A FOIL request for the disciplinary records of police officers cannot be categorically rejected pursuant to the personal privacy exemption. Rather the records must be reviewed and any denials an redactions explained.

 

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