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SALARIES OF UNDERCOVER POLICE OFFICERS NOT SUBJECT TO DISCLOSURE PURSUANT TO A FREEDOM OF INFORMATION LAW REQUEST (FIRST DEPT).

he First Department, reversing (modifying) Supreme Court, determined the salary of undercover police officers should not be disclosed:

FOIL provides that “[n]othing in [the statute] shall be construed to require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89[3][a]), with exceptions not raised here. Accordingly, respondent is not obligated to compile “aggregate data” “from the documents or records in its possession” … .

In any event, the information sought as to the salaries of undercover police officers, whether aggregated or individualized, is exempt from disclosure under FOIL’s public safety exemption (Public Officers Law § 87[2][f]). Respondent met its burden of making a particularized showing that publicly releasing this information would create “a possibility of endangerment” to the public’s safety … . Respondent submitted an affidavit of the Undercover Coordinator of the New York City Police Department (NYPD) establishing that this information could be used to estimate the total number of undercover officers employed by NYPD. The analysis of petitioner’s request must consider not only the instant FOIL request for information as to fiscal year 2017, but also future requests which could be made for equivalent information as to other years. Such information would allow members of the public to estimate the increases or decreases in the overall number of undercover officers, which could “undermine their deterrent effect, hamper NYPD’s counterterrorism operations, and increase the likelihood of another terrorist attack” … . Respondent’s past disclosure of salary and other information as to certain public employees not employed by NYPD is not dispositive. Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 2020 NY Slip Op 05449, First Dept 10-6-20

 

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