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GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER.

The Fourth Department, reversing Supreme Court, determined the grand jury minutes surrounding a fatal shooting by a police officer should not be released. Decedent’s wife sought the grand jury minutes in a federal civil rights action:

We agree with the County that plaintiff failed to “demonstrat[e] a compelling and particularized need for access’ ” to the grand jury materials… . Such a showing must be made in order to overcome the “presumption of confidentiality [that] attaches to the record of [g]rand [j]ury proceedings” … , and is a prerequisite to the court’s exercise of its discretion in “balanc[ing] the public interest for disclosure against the public interest favoring secrecy” … . Here, plaintiff failed to establish that the discovery proceedings in federal court would not be sufficient to ascertain the facts and circumstances surrounding the shooting … . Williams v City of Rochester, 2017 NY Slip Op 04646, 4th Dept 6-9-17

FREEDOM OF INFORMATION LAW (FOIL) (GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)/GRAND JURY MINUTES (FREEDOM OF INFORMATION LAW, GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)

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UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER.

The Third Department, reversing Supreme Court, determined that documents concerning the investigation into petitioner’s husband’s death at a hospital were discoverable under the Public Health Law as long as the documents did not relate to the quality assurance aspect of the investigation. The court noted the criteria for what is discoverable and what is available under the Freedom of Information Act are not identical:

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Respondents demonstrated that Public Health Law § 2805-m applied through the affidavit of DOH’s [Department of Health’s] Acting Records Access Officer, who detailed the investigative process and explained how the statement of deficiencies and plan of correction, as well as the ACTS [ASPEN Complaints/Incidents Tracking System] complaint/incident investigation report, incorporated information collected by the hospital for quality assurance purposes. Our in camera review of those documents confirms that her explanation was accurate. The redactions were therefore proper insofar as they related to quality assurance information and, “[h]aving found a specific guarantee of confidentiality, the privileged information and material is not subject to release or disclosure no matter how strong the showing of need or relevancy” … .

That being said, the redacted portions of investigative notes contained in the ACTS complaint/accident investigation report also include a summary of petitioner’s complaint and facts referring to hospital records with no obvious connection to quality assurance goals. This purely factual information did not, contrary to respondents’ assertion, fall within an intra-agency exemption designed “to safeguard internal government consultations and deliberations” … .The sections of the investigative notes labeled “Allegation #1” and “Findings” were improperly redacted and must be disclosed. Another redacted portion of the report restated the text of the letter sent to petitioner alerting her to the outcome of the investigation, and there is no apparent reason for those portions to be withheld. Matter of Pasek v New York State Dept. of Health, 2017 NY Slip Op 04526, 3rd Dept 6-8-17

 

CIVIL PROCEDURE (HOSPITAL DEATH, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/NEGLIGENCE (MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/MEDICAL MALPRACTICE (DISCOVERY,  UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/FREEDOM OF INFORMATION LAW (FOIL) (MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/QUALITY ASSURANCE INVESTIGATION (HOSPITALS, MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)/PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, DISCOVERY, UNDER THE PUBLIC HEALTH LAW CERTAIN DOCUMENTS RELATED TO A HOSPITAL DEATH THAT WERE NOT PART OF A QUALITY ASSURANCE INVESTIGATION SHOULD HAVE BEEN MADE AVAILABLE TO PETITIONER)

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MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED.

The First Department determined Supreme Court should not have denied a motion to compel discovery of New York Police Department documents solely because prior requests for the documents under the Freedom of Information Law were denied. The “public interest” privilege did not justify outright denial of the motion:

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… [T]the court erred in denying defendants’ motion outright because of the prior denials of their requests for the same information under the Freedom of Information Law (FOIL). “CPLR article 31 is not a statute specifically exempt[ing]’ public records from disclosure under FOIL” and “no provision of FOIL bars simultaneous use of both” CPLR 3101 and FOIL to procure discovery … .

The “public interest” privilege did not justify the outright denial of defendants’ motion, because the court did not engage in the requisite balancing of the public interest in encouraging witnesses to come forward to cooperate in pending criminal investigations against defendants’ need for the documents to defend against plaintiffs’ claim … . Accordingly, we find that remittal to the motion court for in camera review of the requested files is appropriate in this case, to give the court the opportunity to conduct the proper balancing, in the first instance, of the interests of both parties … . Smith v Watson, 2017 NY Slip Op 03878, 1st Dept 5-11-17

 

CIVIL PROCEDURE (MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/FREEDOM OF INFORMATION LAW (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/DISCOVERY LAW (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/PRIVILEGE (PUBLIC INTEREST PRIVILEGE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/PUBLIC INTEREST PRIVILEGE (MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)

RESULTS OF NYPD DISCIPLINARY TRIALS ARE PERSONNEL RECORDS EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, reversing Supreme Court, determined that the results of NYPD police officer disciplinary trials were personnel records which are exempt from a Freedom of Information Law request:

Public Officers Law § 87(2)(a) provides that an agency “may deny access to records” that “are specifically exempted from disclosure by state . . . statute.” The NYPD disciplinary decisions sought here fall within Civil Rights Law § 50-a, which makes confidential police “personnel records used to evaluate performance toward continued employment or promotion” … .

The fact that NYPD disciplinary trials are open to the public (38 RCNY 15-04[g]) does not remove the resulting decisions from the protective cloak of Civil Rights Law § 50-a … . Whether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations … . Further, the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed, neither of which is disclosed at the public trial. Matter of New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506. 1st Dept 3-30-17

 

RECORDS OF PROCEEDINGS BEFORE THE CIVILIAN COMPLAINT REVIEW BOARD ARE POLICE OFFICER PERSONNEL RECORDS WHICH ARE EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, in a full-fledged opinion by Justice Sweeney, reversing Supreme Court, determined Civilian Complaint Review Board (CCRB) records are police officer “personnel records” and are therefore exempt from disclosure under the Public Officers Law and Civil Rights Law. Petitioner sought a summary of any CCRB proceedings involving Officer Pantaleo, who was videotaped applying a choke hold to Eric Garner. Eric Garner died while being restrained by police officers:

We are called upon to determine whether the documents sought herein are the type of documents that fall within the parameters of “personnel records” and are thus protected from disclosure. Civil Rights Law § 50-a does not define “personnel records,” leaving it to the courts to determine the kind of documents qualify for this exemption. * * *

… [T]here is no question that the summary sought involves one officer and are part and parcel of his personnel file. There is also no question that the records sought are “used to evaluate performance toward continued employment or promotion,” as required by the statute. …

CCRB findings and recommendations are clearly of significance to superiors in evaluating police officers’ performance. As noted, all complaints filed with the CCRB, regardless of the outcome, are filed with and remain in an officer’s CCRB history, which is part of his or her personnel record maintained by the NYPD. We therefore hold that the CCRB met its burden of demonstrating that those documents constitute “personnel records” for purposes of Civil Rights Law § 50-a, and that they fall squarely within a statutory exemption of the statute … . Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., 2017 NY Slip Op 02523, 1st Dept 3-30-17

 

RESULTS OF NYPD DISCIPLINARY TRIALS ARE PERSONNEL RECORDS EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, reversing Supreme Court, determined that the results of NYPD police officer disciplinary trials were personnel records which are exempt from a Freedom of Information Law request:

Public Officers Law § 87(2)(a) provides that an agency “may deny access to records” that “are specifically exempted from disclosure by state . . . statute.” The NYPD disciplinary decisions sought here fall within Civil Rights Law § 50-a, which makes confidential police “personnel records used to evaluate performance toward continued employment or promotion” … .

The fact that NYPD disciplinary trials are open to the public (38 RCNY 15-04[g]) does not remove the resulting decisions from the protective cloak of Civil Rights Law § 50-a … . Whether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations … . Further, the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed, neither of which is disclosed at the public trial. Matter of New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506. 1st Dept 3-30-17

 

RECORDS OF PROCEEDINGS BEFORE THE CIVILIAN COMPLAINT REVIEW BOARD ARE POLICE OFFICER PERSONNEL RECORDS WHICH ARE EXEMPT FROM A FREEDOM OF INFORMATION LAW REQUEST.

The First Department, in a full-fledged opinion by Justice Sweeney, reversing Supreme Court, determined Civilian Complaint Review Board (CCRB) records are police officer “personnel records” and are therefore exempt from disclosure under the Public Officers Law and Civil Rights Law. Petitioner sought a summary of any CCRB proceedings involving Officer Pantaleo, who was videotaped applying a choke hold to Eric Garner. Eric Garner died while being restrained by police officers:

We are called upon to determine whether the documents sought herein are the type of documents that fall within the parameters of “personnel records” and are thus protected from disclosure. Civil Rights Law § 50-a does not define “personnel records,” leaving it to the courts to determine the kind of documents qualify for this exemption. * * *

… [T]here is no question that the summary sought involves one officer and are part and parcel of his personnel file. There is also no question that the records sought are “used to evaluate performance toward continued employment or promotion,” as required by the statute. …

CCRB findings and recommendations are clearly of significance to superiors in evaluating police officers’ performance. As noted, all complaints filed with the CCRB, regardless of the outcome, are filed with and remain in an officer’s CCRB history, which is part of his or her personnel record maintained by the NYPD. We therefore hold that the CCRB met its burden of demonstrating that those documents constitute “personnel records” for purposes of Civil Rights Law § 50-a, and that they fall squarely within a statutory exemption of the statute … . Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., 2017 NY Slip Op 02523, 1st Dept 3-30-17

 

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DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR.

In the context of a suit against the county, the Fourth Department determined the deliberative process privilege (also called the inter-agency or intra-agency materials exception) which applies to documents requested under the Freedom of Information Law does not apply to discovery request under the CPLR:

Both the CPLR and FOIL provide for disclosure of documents. The former controls discovery between litigants in court proceedings, and the latter permits disclosure of governmental records to the public even in the absence of litigation. “When a public agency is one of the litigants, this means that it has the distinct disadvantage of having to offer its adversary two routes into its records” … . The deliberative process privilege or exemption under FOIL seeks “to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers” … . While some courts have applied that privilege outside the FOIL context … , we decline to do so inasmuch as the Court of Appeals “has never created nor recognized a generalized deliberative process privilege’ ” … .

We “recognize[] the existence of some cases which all too casually mention the deliberate process privilege’ and purport to apply it outside the context of a FOIL proceeding” … . Nevertheless, it is also important to recognize that “privileges simply do not exist in the absence of either constitutional or statutory authority, or, when created as a matter of jurisprudence” … . Although the County seeks to assert “the so-called deliberative process privilege[,]’ ” in the context of a civil litigation, “neither the Court of Appeals’ case law nor that of the [Fourth] Department can be construed [as] having created a distinct deliberate process privilege’ outside the context of a FOIL proceeding” … . Mosey v County of Erie, 2017 NY Slip Op 02201, 4th Dept 3-24-17

 

CIVIL PROCEDURE (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/FREEDOM OF INFORMATION LAW (FOIL) (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/MUNICIPAL LAW (DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/DELIBERATIVE PROCESS PRIVILEGE (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)/INTER OR INTRA AGENCY EXCEPTION (FOIL, DELIBERATIVE PROCESS PRIVILEGE UNDER THE FREEDOM OF INFORMATION LAW DOES NOT APPLY TO DISCOVERY REQUEST FOR GOVERNMENT DOCUMENTS UNDER THE CPLR)

INSUFFICIENT SHOWING BY THE STATE POLICE TO JUSTIFY DENIAL OF REQUEST FOR RECORDS PERTAINING TO A VICTIM OF CRIMES COMMITTED BY PETITIONER, MATTER REMITTED.

The Third Department determined the state police did not make sufficient assertions to justify the denial of petitioner’s request for records concerning a victim of crimes committed by petitioner (an inmate). The state police did not provide factual information to support the claims that the records would disclose non-routine investigatory techniques and would violate privacy. The state police further failed to show that redaction could address those concerns. The matter was remitted to Supreme Court:

The State Police merely paraphrased the statutory language of the exemptions without describing the records withheld or providing any factual basis for its conclusory assertions that disclosure would constitute an unwarranted invasion of personal privacy and would reveal nonroutine criminal investigative techniques and procedures … . Further, with respect to the personal privacy exemption, the State Police offered no proof that the requested records fell into any enumerated categories and failed to specify the implicated privacy interests, if any, against which the public interest in disclosing the records were to be balanced … .

Moreover, Public Officers Law § 89 (2) (a) expressly permits an agency to delete “identifying details” from records that it makes available to the public in order to prevent unwarranted invasions of personal privacy … , and the State Police failed to make any showing as to whether the requested documents could be redacted in such a manner as to protect personal privacy … . Nor did it submit the documents to Supreme Court for an in camera review to allow an “informed determination” by the court on that issue … . Matter of McFadden v Fonda, 2017 NY Slip Op 02101, 3rd Dept 3-23-17

 

DENIAL OF FREEDOM OF INFORMATION LAW REQUESTS REVERSED, CASE REMITTED TO DETERMINE IF REDACTION CAN ADEQUATLEY PROTECT PRIVACY.

The Third Department, reversing Supreme Court, determined that the requests for information about former public employees who applied for positions in state college police departments should not have been denied. The argument that redaction of identifying information from the documents (to which petitioner agreed) would not protect the applicants’ privacy was rejected. The matter was remitted for court review of the documents:

… [R]espondents argue — and Supreme Court agreed — that, given the prominent nature of the positions and the limited number of applicants, disclosure of the requested documents, even with appropriate redactions, could lead to the identification of the unsuccessful applicants. Such speculation, however, “does not rise to the level of ‘a particularized and specific justification for denying access’ to the [entirety of] the records requested” … . Respondents have failed to demonstrate any factual basis for their assertion that the requested documents cannot be redacted in such a manner as to protect the identity of the individual applicants … . …

… [T]he matter must be remitted to Supreme Court for an in camera inspection of the requested documents to determine the extent to which they contain information exempt from disclosure and whether such information can be redacted while still protecting the personal privacy of those individuals … . Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2016 NY Slip Op 08918 3rd Dept 12-29-16

 

FREEDOM OF INFORMATION LAW (FOIL) (DENIAL OF FREEDOM OF INFORMATION LAW REQUESTS REVERSED, CASE REMITTED TO DETERMINE IF REDACTION CAN ADEQUATLEY PROTECT PRIVACY)

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