Municipalities in New York State should be ready to respond to an increased amount of Freedom of Information Law (“FOIL”) requests as a result of a bill just passed in both houses of the New York State Legislature and signed by the Governor. On June 11, 2020, a bill (S8496) was sent to the Governor’s desk which both repeals an important portion of the state’s Civil Rights Law and amends multiple sections of the Public Officers Law so as to now allow the public to have access to the disciplinary records of law enforcement personnel.
Historically, FOIL has been the way the public seeks access to public records kept by state, county, municipal, and certain other public entities and agencies. While the very nature of FOIL is synonymous with a strong presumption of transparency and disclosure, there were always certain exemptions that a governmental agency could invoke to prevent disclosure of all or portions of certain records as long as there was a reasonable basis to do so. One of the exemptions to disclosure, as stated in POL §87(2)(a), applies to records that are “specifically exempted from disclosure by state or federal statute.” In relevant part, Civil Rights Law §50-a (1) states law enforcement personnel records are considered confidential and could not be released except as mandated by a lawful court order or the consent of the officer who is the subject of the records.
New York Civil Rights Law §50-a will be repealed in its entirety and law enforcement personnel records, specifically the disciplinary records, will no longer be automatically exempt from disclosure. It is important to note this law applies to law enforcement agencies at all municipal levels (state, city, village and/or town) such as a sheriff’s department, a department of corrections and community supervision, a local department of correction, a local probation department, a fire department, or even a force of local individuals employed as firefighters or paramedics.
The new law enumerates “law enforcement disciplinary records” to mean “any record created in furtherance of a law enforcement disciplinary proceeding, including, but not limited to the following: (a) complaints, allegations, and charges against an employee; (b) the name of the employee complained of or charged; (c) the transcript of any disciplinary trial or hearing, including any exhibits introduced at the trial or hearing; (d) the disposition of any disciplinary proceeding; and (e) final written opinion or memorandum supporting the disposition and discipline imposed including the agency’s complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee.”
The bill does however identify certain aspects of such records which are to be redacted and therefore not subject to disclosure. Specifically, in addition to repealing Civil Rights Law §50-a, the law also amends the Public Officers Law by adding multiple clauses to §§86, 87, and 89 addressing the disclosure of law enforcement disciplinary records. Most importantly, under new subdivisions 4-a and 4-b of POL §87, a law enforcement agency shall redact any portion of a record containing personal medical information, the use of an employee assistance program, social security number, home addresses, or personal emails or telephone numbers. The disclosure of this type of information would result in an unwarranted invasion of personal privacy and is prohibited under POL §87(2)(b). Additionally, a law enforcement agency may redact records pertaining to “technical infractions,” defined under new subdivision 9 of POL §86 as a minor rule violation that “(a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person’s investigative, enforcement, training, supervision, or reporting responsibilities.”
While certain exemptions to disclosure are enumerated in the bill, it is unclear where some of the other FOIL exemptions will fit in to the disclosure of law enforcement disciplinary records. Under POL §87(2)(e), for example, records compiled for law enforcement purposes and, if disclosed, would interfere with a current criminal investigation or proceeding are regularly exempt from disclosure, which may leave the courts with the final say on how some of the FOIL exemptions can be used to still prevent the release of law enforcement records to the public.
Going forward, legal counsel and FOIL officers for the various law enforcement type agencies at the state, county and all municipal levels, as more clearly enumerated above, must be mindful of any FOIL request having to do with the disclosure of law enforcement personnel and disciplinary records, especially since recent reforms to FOIL make attorney’s fees awards compulsory where a government agency has “no reasonable basis” for denying access to a request. Following the old way of responding to FOIL requests for such records will no longer suffice in today’s environment. One can fully expect media personnel, plaintiff attorneys from various areas of litigation, and even the general public itself to be much more forceful and demanding when requesting such records, while those law enforcement personnel and their counsel will likely be just as vigilant in reviewing such requests and likely objecting to the production of such records. As a result, the spotlight will clearly be on all such municipalities as well as their respective counsel and FOIL officers regarding how they analyze and process such new requests.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.