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THE NEWSPAPER’S FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS, INCLUDING RECORDS OF UNSUBSTANTIATED ALLEGATIONS AND RECORDS CREATED BEFORE THE REPEAL OF CIVIL RIGHTS LAW 50-A, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-newspaper’s FOIL request for police disciplinary records, including records of allegations ruled unsubstantiated and records created before the repeal of Civil Rights Law 50-a, should have been granted:

… [T]he Supreme Court erred in concluding that the privacy exemption under Public Officers Law § 87(2)(b) creates a blanket exemption allowing the respondents to categorically withhold the disciplinary records of unsubstantiated allegations of misconduct … . Inasmuch as the respondents withheld the requested records containing unsubstantiated allegations of misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of the records, the respondents did not meet their burden of establishing that the privacy exemption applies … . The respondents further failed to establish that “identifying details” in the records containing unsubstantiated allegations or complaints of misconduct “could not be redacted so as to not constitute an unwarranted invasion of personal privacy” … .

… [E]ffective June 12, 2020, the New York State Legislature repealed Civil Rights Law § 50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure … . Thus, the statutory exemption under Public Officers Law § 87(2)(a) no longer applies to law enforcement personnel records. The bill repealing Civil Rights Law § 50-a also made several amendments to FOIL concerning disciplinary records of law enforcement agencies … . Of particular relevance here, Public Officers Law § 86 was amended by adding subdivisions (6) and (7), defining “[l]aw enforcement disciplinary records” and a “[l]aw enforcement disciplinary proceeding.”

Here, as the petitioner made the subject FOIL requests after the legislative amendments were enacted, the petitioner was not seeking retroactive application of the statutory amendments to a pending FOIL request … . Moreover, for the reasons set forth in Matter of Newsday, LLC v Nassau County Police Dept. (222 AD3d at 92-93), we reject the respondents’ contention that in amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature intended to exclude from disclosure any law enforcement disciplinary records that were created prior to June 12, 2020 … .. Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., 2024 NY Slip Op 04071, Second Dept 7-31-24

Practice Point: Absent proof of some privacy exemption, police disciplinary records, including those involving unsubstantiated allegations and those created before the repeal of Civil Rights Law 50-a, may be provided pursuant to a FOIL request.

 

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