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Records of a Police Investigation of a Police Officer Who Has Been Terminated Are Not “Personnel Records” Subject to Exemption from Disclosure Pursuant to the “Personnel Records” Provision of the Freedom of Information Law (FOIL)

The Third Department determined that the personnel records associated with the investigation of an off-duty police officer’s involvement in a hit and run accident were generally exempt from disclosure pursuant to the Freedom of Information Law (FOIL) (as police “personnel records”). However, the investigation continued after the officer’s employment was terminated. The records of the post-termination investigation were not “personnel records” and, therefore, were not exempt from disclosure under the “personnel records” provision:

As is relevant here, Civil Rights Law § 50-a (1) exempts from disclosure the “personnel records” of police officers that are “used to evaluate performance toward continued employment or promotion.” …

Proof that information was generated for the purpose of assessing an employee’s alleged misconduct brings that information within the protection of Civil Rights Law § 50-a (1) … . This does not end our inquiry, however, because uncontested evidence established that respondent’s investigation of Beardsley continued after he had resigned as an employee of respondent. We agree with petitioners that police departments who investigate persons who are no longer their employees are not conducting investigations of “personnel” within the meaning of Civil Rights Law § 50-a (1). The plain meaning of the word personnel identifies individuals with some current employment relationship with an organization. This meaning of personnel is further confirmed by the statute, as individuals who are not current employees cannot be considered for either “continued employment or promotion” (Civil Rights Law § 50-a [1]). Accordingly, Supreme Court erred in finding that respondent met its burden of establishing that the materials resulting from its investigation after Beardsley had resigned were for the purpose of assessing his continued employment or promotion and that, as a result, Civil Rights Law § 50-a (1) provided confidentiality to such materials. Matter of Hearst Corp. v New York State Police, 2015 NY Slip Op 07729, 3rd Dept 10-22-15

 

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Law of Plaintiff’s Residence Applied to Action Alleging Injury from Use of Plaintiff’s Image and Voice (Video Clip) on a Television Show

The Second Department determined New York law, not California law, applied to plaintiff’s complaint alleging injury stemming from the use of a video clip, in which plaintiff appeared, on a television show. The plaintiff resided in New York, and the video clip was edited in California. The complaint alleged violation of California law. The Second Department explained why New York law applied and further determined that the video clip did not violate New York’s Civil Rights Law (sections 50 and 51) because the clip was not used for advertising:

New York uses an interest analysis, under which “the law of the jurisdiction having the greatest interest in resolving the particular issue” is given controlling effect … . Pursuant to the interest analysis, “[a] distinction [is made] between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs” … . If the conflicting laws regulate conduct, the law of the place of the tort “almost invariably obtains” because “that jurisdiction has the greatest interest in regulating behavior within its borders” … . “[W]here the plaintiff and defendant are domiciled in different states, the applicable law in an action where civil remedies are sought for tortious conduct is that of the situs of the injury” … .

Applying these principles, the law of New York, where the alleged injury or damage occurred, applies. Although the alleged tortious conduct, the editing of the video clip, occurred in California, the plaintiff’s alleged injury occurred in New York, where he is domiciled and resides. Moreover, New York is the state with the greater interest in protecting the plaintiff, its citizen and resident. Sondik v Kimmel, 2015 NY Slip Op 06803, 2nd Dept 9-16-15

 

Plaintiffs Raised a Question of Fact Whether “SLAPP” Suit Has a Substantial Basis in Fact and Law

The Second Department, over a long and detailed dissent, determined defendant, Petrucci, was entitled to summary judgment on the question whether the action against her constituted a SLAPP suit under the Civil Rights Law, but was not entitled to summary judgment on the merits.  SLAPP stands for “strategic lawsuit against public participation.” The statute, Civil Rights law 76-a(1), seeks to prohibit lawsuits brought against citizens who are critical of public bodies. Although finding that the suit is properly characterized as a SLAPP suit, the majority further determined the plaintiffs had raised questions of fact about whether their action “has a substantial basis in fact and law.” Plaintiffs have leases with the Port Authority. Plaintiffs alleged that Petrucci falsely reported to the Port Authority’s Office of Inspector General that plaintiffs had underreported their revenues and therefore were paying less rent than was owed:

Civil Rights Law § 76-a(1) provides, in relevant part:

“(a) An action involving public petition and participation’ is an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.

“(b) Public applicant or permittee’ shall mean any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection or affiliation with such person that is materially related to such application or permission.”

Here, the plaintiffs are “public permittees” within the meaning of the statute, since that term encompasses those who have obtained a lease from a government body, and the plaintiffs have obtained concessionary leases from the Port Authority of New York and New Jersey (hereinafter the Port Authority). Moreover, those causes of action specifically asserted against Petrucci in the complaint are “materially related” to her efforts to report on those leases, since they are premised upon her statements to the Port Authority’s Office of the Inspector General (hereinafter the OIG) regarding whether the plaintiffs, inter alia, intentionally underreported their revenues and thus paid less rent than was owed under the leases. Inasmuch as the complaint alleges that Petrucci affirmatively instigated the subject investigations by the OIG in a calculated attempt to undermine the plaintiffs’ leases with the Port Authority, and that she made her statements directly to the governing body responsible for the leases …, Petrucci demonstrated her prima facie entitlement to judgment as a matter of law determining that this action is a SLAPP suit, and the plaintiffs failed to raise a triable issue of fact in opposition. Accordingly, this action is properly characterized as a SLAPP suit … .

However, Petrucci was not entitled to summary judgment dismissing those causes of action specifically asserted against her in the complaint, or on her counterclaim pursuant to Civil Rights Law § 70-a. While we share the dissent’s concern for safeguarding the rights of citizens to comment on matters of public concern, and we acknowledge that “Civil Rights Law § 76-a was enacted to provide special protection for defendants in actions arising from the exercise of their rights of public petition and participation by deterring SLAPP actions” … , we conclude that the plaintiffs sustained their statutory burdens in opposition to the motion by demonstrating that the action “has a substantial basis in fact and law” (CPLR 3212[h]…). International Shoppes, Inc. v At the Airport, LLC, 2015 NY Slip Op 06710, 2nd Dept 9-2-15

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Question of Fact Raised Whether Police Officers Used Excessive Force In Violation of Plaintiff’s Civil Rights—Criteria Explained

The Second Department determined a question of fact had been raised about whether police officers used excessive force in violation of plaintiff’s civil rights.  The court explained the relevant law:

“A claim that a law enforcement official used excessive force during the course of an arrest . . . is to be analyzed under the objective reasonableness standard of the Fourth Amendment” … . The reasonableness of a particular use of force is judged from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” …, and takes into account “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he [or she] is actively resisting arrest or attempting to evade arrest by flight” … . “[A]n officer’s decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” … . “Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” … . “If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity” … . Williams v City of New York, 2015 NY Slip Op 05470, 2nd Dept 6-24-15

 

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Documents Which Reveal the Identity of Sex Offense Victims Are Categorically Excluded from Disclosure Under the Civil Rights Law and Public Officers Law (Even If the Identifying Information Can Be Redacted)

The Third Department determined petitioner’s request for evidence held by the district attorney’s office was properly denied.  The requested evidence consisted of chat logs and the contents of computers which identified the victims of sex offenses. The court noted that, even if the identification could be reacted, the documents are categorically excluded from disclosure under the Civil Rights Law and Public Officers Law.  Matter of MacKenzie v Seiden, 2015 NY Slip Op 04537, 3rd Dept 5-28-15

 

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Acclaimed Photographer’s Surreptitious Taking of Photographs of Plaintiffs Through Apartment Windows Did Not Violate Plaintiffs’ Right to Privacy as Codified in Civil Rights Law 50 and 51–Art Is Exempt from the Reach of Those Statutes

The First Department, in a full-fledged opinion by Justice Renwick, determined that defendant’s surreptitious taking of photographs of plaintiffs through the windows of plaintiffs’ apartment did not violate the plaintiffs’ right to privacy codified in Civil Rights Law sections 50 and 51.  The critically acclaimed photographer assembled the photographs, which were for sale, in an exhibition called “Neighbors” and put them up on his website. The court explained that the “newsworthy and public interest” exemption from the prohibitions of Civil Rights Law 50 and 51 has been extended to works of art by some courts, although the New York Court of Appeals has yet to consider the issue.  The court wrote:  “[We are constrained to conclude] works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption. … [U]nder this exemption, the press is given broad leeway. This is because the informational value of the ideas conveyed by the art work is seen as a matter of public interest. We recognize that the public, as a whole, has an equally strong interest in the dissemination of images, aesthetic values and symbols contained in the art work. In our view, artistic expression in the form of art work must therefore be given the same leeway extended to the press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy:”

Applying the newsworthy and public concern exemption to the complaint herein, we conclude that the allegations do not sufficiently plead a cause of action under the statutory tort of invasion of privacy. As detailed above, plaintiffs essentially allege that defendant used their images in local and national media to promote “The Neighbors,” an exhibition that included photographs of individuals taken under the same circumstances as those featuring plaintiffs. Plaintiffs further allege that the photographs were for sale at the exhibit and on a commercial website.

Accepting, as we must, plaintiffs’ allegations as true …, they do not sufficiently allege that defendant used the photographs in question for the purpose of advertising or for purpose of trade within the meaning of the privacy statute. Defendant’s use of the photos falls within the ambit of constitutionally protected conduct in the form of a work of art. Foster v Svenson, 2015 NY Slip Op 03068, 1st Dept 4-9-15

 

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Procedure Under Civil Rights Law for Disclosure of Police Personnel Records Described

The Second Department determined plaintiff was entitled to the audiotapes of interviews of police officers which were attached to a report about a high-speed chase that resulted in the death of plaintiff's decedent.  Plaintiff's decedent was killed when the vehicle the police were chasing crashed into plaintiff's decedent's house:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action.” However, Civil Rights Law § 50-a, which codifies the standards for the disclosure of police personnel records …, provides that a police officer's “personnel records, used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). Prior to issuing such an order, the court is obligated to conduct an in camera review of the requested file, “and make a determination as to whether the records are relevant and material in the action before” it, and, upon such a finding “the court shall make those parts of the record found to be relevant and material available to the persons so requesting” (Civil Rights Law § 50-a[3]).

Here, the order dated March 22, 2013, indicated that the Supreme Court had reviewed “the reports sought . . . and all documentation annexed thereto” before concluding that there was “relevant and material” information contained therein (emphasis added). Accordingly, the plaintiff met his burden for compelling disclosure pursuant to Civil Rights Law § 50-a, and the court properly directed the County to disclose the IAB report. However, we perceive no reason why the plaintiff should have been denied access to the audiotapes of the interviews which were identified in the attachments to the IAB report … . The plaintiff should be permitted to hear the actual interviews of the officers regarding the accident, and not only read the IAB report's summaries thereof, since the interviews were the main source material for the IAB report and were incorporated by reference therein … .

“The party opposing disclosure carries the burden of demonstrating that the requested information falls squarely within the exemption'” … . The County has not offered any explanation as to why the audiotapes should not be discoverable, especially since it has already disclosed all of the other source material identified in the attachments to the IAB report. Calhoun v County of Suffolk, 2014 NY Slip Op 09095, 2nd Dept 12-31-14


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Defendant, a County Sheriff, May Not Have Had the Authority to Order the Plaintiff to Leave the Airport/Questions of Fact Raised About Whether Defendant Had Probable Cause to Arrest Plaintiff for Trespass and Disorderly Conduct/Questions of Fact Raised About Whether Excessive Force Was Used and Whether Plaintiff Was Subjected to Retaliation for the Use of Protected Speech

The Third Department determined Supreme Court properly denied defendant’s motion for summary judgment on plaintiff’s “false arrest” cause of action, and Supreme Court erred in granting the defendant’s motion for summary judgment on plaintiff’s “excessive force” and “retaliation for the use of protected speech” causes of action. The lawsuit stemmed from plaintiff’s being told by airport personnel that her daughter had not arrived as expected because she missed a connecting flight.  Plaintiff became upset when she couldn’t learn more about the status of her daughter.  Defendant, a county sheriff, came on the scene, ordered plaintiff to leave the airport, and, when plaintiff refused, arrested her for trespass and disorderly conduct. The Third Department determined there were questions of fact about whether defendant had probable cause to arrest plaintiff, as well as whether excessive force was used and whether the defendant acted in retaliation for protected speech. With respect to the trespass arrest, the court noted that defendant may not have had the authority to order plaintiff to leave the airport:

In assessing whether defendant met his initial burden of establishing that he had arguable probable cause to arrest plaintiff for trespass, proof of defendant’s authority to issue the blanket order directing plaintiff to leave the public facility must be examined. This is so because the “right to exclude ‘has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights'” … and, unless otherwise authorized, police do not have the inherent and general rights of a property owner (see e.g. US Const 4th Amend). The record demonstrates that, on the day in question, defendant was a county employee working in the county airport, a public facility. In support of his motion, defendant provided no proof that he was either prescribed by law or directed by the Tompkins County legislature to exercise any authority to lawfully order a citizen to leave this public property (see County Law § 650…). Nor did defendant’s proffer demonstrate that he was asked to remove plaintiff from the airport property by someone with the authority to do so … . Therefore, defendant did not establish as a matter of law that he had arguable probable cause to arrest plaintiff for criminal trespass because issues of fact exist as to whether, at the time of arrest, it was reasonable for defendant to believe that plaintiff was disobeying a lawful order … . Brown v Hoffman, 2014 NY Slip Op 08099, 3rd Dept 11-20-14

 

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The Existence of Probable Cause Required Dismissal of Causes of Action for False Arrest, False Imprisonment, Malicious Prosecution and Violation of Civil Rights (42 USC 1983)

The Second Department, reversing Supreme Court, determined the existence of probable cause was a complete defense to the causes of action alleging false arrest, false imprisonment, malicious prosecution and violation of civil rights (42 USC 1983):

The existence of probable cause constitutes a complete defense to causes of action alleging false arrest, false imprisonment, and malicious prosecution …, including causes of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that are the federal-law equivalents of state common-law false arrest and malicious prosecution causes of action … . Generally, probable cause is established where an identified crime victim “communicates to the arresting officer information affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator” … .

The appellants demonstrated their prima facie entitlement to judgment as a matter of law by establishing the existence of probable cause for the plaintiff’s arrest. Paulos v City of New York, 2014 NY Slip Op 07994, 2nd Dept 11-19=-14

 

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A Retired Police Officer’s Personnel Records, Including Records of Misconduct, Are Exempt from the Freedom of Information Law

The Third Department noted that records of personnel records of a police officer, including records of misconduct, are exempt from the Freedom of Information Law pursuant to the Civil Rights Law, and the exemption extends to retired police officers:

An agency may properly deny access to records that are specifically exempted from disclosure by state statute (see Public Officers Law § 87 [2] [a]). As is relevant here, Civil Rights Law § 50-a (1) provides that “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . .[,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.” Personnel records include documents relating to misconduct or rule violations by police officers … . Thus, if a document relating to an officer’s public employment may be used “in litigation to harass, embarrass, degrade or impeach [that] officer’s integrity,” then it is protected by Civil Rights Law § 50-a … .

Inasmuch as this Court has expressly ruled that a police officer’s personnel records continue to be exempt from disclosure after he or she departs from public service, we disagree with petitioner’s contention that Supreme Court erred by concluding that Civil Rights Law § 50-a applies to the records of [the officer] as a retired police officer … . Whether an officer “is no longer employed by [an agency] has no bearing upon the question of whether the requested records were or were not used by [that agency] to evaluate his [or her] performance” … . Matter of Columbia-Greene Beauty School Inc v City of Albany, 2014 NY Slip Op 07233, 3rd Dept 10-23-14

 

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