Petitioner commenced this CPLR Article 78 proceeding to challenge respondent's response to its request for documents in accordance with the Freedom of Information Law (Public Officers Law §84 et. al., hereinafter, "FOIL").Respondents contend that petitioner is not entitled to the documents because the records are exempt from disclosure.

Petitioner is a corporate entity that operates beauty schools at different locations in the Capital Region. Respondent Matthew Couch is an investigator with the New York State Department of Education who formerly served as a police officer with the City of Albany Police Department.By correspondence dated September 9, 2011, petitioner submitted to the respondent City of Albany a request for records pursuant to FOIL as follows:

- All records that set forth the period during which Matthew Couch was employed by the City and the position(s) that he held;

- All records regarding Matthew Couch's separation from his employment with the City;

- All records of complaints submitted to the City regarding the conduct of Matthew Couch while he was employed by the City;

- All records of discipline imposed upon Matthew Couch in response to complaints submitted to the City regarding the conduct of Matthew Couch while he was employed by the City

- All records evidencing communications to and from Matthew Couch with respect to the issuance of parking tickets to Mr. Couch by City employees; and

- Records pertaining to the number of "no-fine parking tickets" issued to Matthew Couch and when the tickets were issued.

By correspondence dated September 13, 2011, the respondent City of Albany's Records Access Officer responded to petitioner's FOIL request to advise that it would respond within ten days. According to petitioner's counsel, although he or his assistant had conversations with the records access officer, no response was provided.By correspondence dated January 3, 2012, petitioner's counsel wrote to respondent's FOIL Appeals Officer to advise that petitioner considered the Records Access Officer's failure to respond as a constructive denial of the September 9, 2011 FOIL request and to appeal the constructive denial.

Petitioner's counsel contends that following the January 3, 2012 appeal, it had conversations with counsel for the respondent City of Albany but that the City never provided either a response to the appeal or the records. By correspondence dated June 1, 2012, petitioner's counsel wrote to the City's counsel to advise that if a response was not provided within five days, it would "consider the appeal as having been denied" (Exhibit D). The City did not respond and petitioner commenced this CPLR Article 78 proceeding on June 19, 2012. The parties requested an "indefinite adjournment" to allow for settlement. When such effort was unsuccessful, a conference was held and the proceeding was adjourned to November 8, 2012.

The Freedom of Information Law provides, in relevant part, that a covered agency must:

"make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: (a) are specifically exempted from disclosure by state or federal statute" (Public Officers Law §87 (2)[a]).As relevant to this dispute, Civil Rights Law [*2]50-a provides that:

All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision....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.

(Civil Rights Law §50-a (1)).

Civil Rights Law §50-a does not provide a "blanket exemption" prohibiting disclosure of personnel records held by police agencies (Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 567 [1986]).Rather, the "sole standard" for confidentiality in the statute, that the record is "used to evaluate performance toward continued employment or promotion", "must be tempered when it interacts with the competing, equally strong legislative policy of open government through broad public access to governmental agency records embodied in the FOIL legislation" (Daily Gazette Co. v. City of Schenectady, 93 NY2d 145, 157 [1999]). Accordingly,

when access to an officer's personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a—to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer... records having remote or no such potential use,...fall outside the scope of the statute'

Here, both the respondent City of Albany and Mr. Couch oppose the release of former Officer Couch's personnel records.More specifically, the City of Albany contends that Mr. Couch's "file from the Albany Police Department Office of Professional Standards...must be withheld in [its] entirety pursuant to Civil Rights Law §50-a" (Burns Aff ¶9). It does, however, provide copies of documents purportedly responsive to petitioner's request for "no-fine" tickets (see Petitioner's sixth request).Mr. Couch contends that the petitioner's request for records "regarding [his] separation from his employment with the City"; "complaints submitted to the City regarding [his] conduct...while he was employed by the City" and "records of discipline imposed upon [him] in response to complaints submitted to the City regarding [his] conduct while he was employed by the City" are "confidential and not subject to inspection or review"

(Roberts Affirmation ¶3).

As the parties opposing disclosure of the records pursuant to FOIL, the respondent City of Albany and Mr. Couch

"[carry] the burden of demonstrating that the requested information falls squarely within the exemption ***. In the case of a claim that disclosure is specifically exempted from disclosure by state statute' ***, by reason of Civil Rights Law § 50-a, this means that the agency must demonstrate a substantial and realistic potential of the requested material for the abusive use against the officer..."

Here, at least with respect to the records maintained in the "Professional Standards" file, there appears to be no dispute that the records were used to evaluate former Officer Couch's performance. Rather, the issue presented is whether a record can be deemed a "confidential personnel record" pursuant to Civil Rights Law §50-a where, as here, the subject of the requested records is no longer serving as a police officer.In petitioner's view, because Mr. Couch is no longer an officer, the records can not be used, "to evaluate performance toward [his] continued employment or promotion", and are therefore not personnel records exempt from disclosure pursuant to Civil Rights Law §50-a as a basis for its refusal to disclose the requested records (Culnan Affirmation ¶17).

The statute's legislative history reveals that among its purposes, Civil Rights Law §50-a was intended "to prevent abusive exploitation of personally damaging information contained in officers' personnel records", (Daily Gazette Co. , Supra, 93 NY2d at 154); to diminish "harassment or reprisals" against officers (Id at 155, Capital Newspapers Div. of Hearst Corp, Supra, 67 NY2d at 569 ), to "promote better relations between ...officers and their governmental employers" (Id.) and to "protect officers from the use of records — including unsubstantiated and irrelevant complaints of misconduct — ...for purposes of cross-examination by plaintiff's counsel during litigation" (Prisoners' Legal Services, Supra, 73 NY2d at 31).

If a record is the type that could be used "to evaluate performance toward continued employment or promotion" it is a confidential personnel record, even if it is not "actually used for that purpose" (Matter of Capital Newspapers Div. of Hearst Corp. v. City of Albany, 63 AD3d 1336 [2009], affirmed in part and modified in part, 15 NY3d 759 [2010]) It follows, therefore, that such record is still a confidential "personnel record" even if the subject of the record is no longer an officer (Id., at fn 3). In this Court's view, in order to determine whether a record is a "personnel record", pursuant to Civil Rights Law §50-a, it is necessary to assess the potential use of the record at the time it was made, not its potential use at the time there is a request for its disclosure.This interpretation credits the intent of the statute and ensures the integrity of the records (see, e.g Guzman v. City of New York, 91 Misc 2d 270 [1977]).

Based on the foregoing, and in response to the issue framed by the parties to this proceeding, the Court finds that the respondents have demonstrated that the records (1) "regarding [his] separation from his employment with the City"; (2)"complaints submitted to the City regarding [his] conduct...while he was employed by the City"; and (3) "records of discipline imposed upon [him] in response to complaints submitted to the City regarding [his] conduct while he was employed by the City" are "confidential and not subject to inspection or review" were properly withheld pursuant to Public Officers Law §87 (2)[a] because the records are confidential "personnel records" pursuant to Civil Rights Law §50-a.The City has not demonstrated any statutory exemption to withhold the remaining requested records, thus, to the [*4]extent such records have not been provided, the respondent City of Albany shall provide same within twenty days from the date of this Decision and Order.

The Public Officers Law provides that this Court may award attorneys fees and litigation costs "in any case under the provisions of this section in which such person has substantially prevailed, when: i. the agency had no reasonable basis for denying access; or ii. the agency 1] failed to respond to a request or appeal within the statutory time" (Public Officers Law §89(4)[c]). Here, although petitioner's complaints with regard to the City's unexplained failure to respond to its requests in accordance with the provisions of the Freedom of Information Law are reasonable, the Court is unable to conclude that it "substantially prevailed" in this proceeding.

Accordingly, based on the foregoing, it is

ORDERED AND ADJUDGED that the petition is granted, to the extent that the respondent City of Albany is directed to provide records responsive to petitioner's request for

(1) "[a]ll records that set forth the period during which Matthew Couch was employed bythe City and the position(s) that he held; and

(2) "[a]ll records evidencing communications to and from Matthew Couch with respect to the issuance of parking tickets to Mr. Couch by City employees"

ORDERED AND ADJUDGED that in all other respects, the petition is dismissed; and it is further

ORDERED AND ADJUDGED that petitioner's request for attorney's fees pursuant to Public Officer's Law §89 (4)[c] is denied.

This memorandum constitutes the Decision and Order of this Court. This original Decision and Order is returned to the attorneys for respondent City of Albany. The below referenced submissions will be filed with the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of that Rule respecting filing, entry and Notice of Entry.

DATED:

Albany, New York

________________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Notice of Petition dated June 18, 2012, with Verified Petition, Exhibits thereto, and Affirmation in Support (Brian M. Culnan, Esq.) and Exhibit thereto;

2.Attorney Affirmation dated October 25, 2012 (William D. Roberts, Esq.);

3.Verified Answer, Attorney Affirmation dated October 24, 2012 (Bradford D. Burns, Esq.) and Exhibit thereto, Memorandum of Law;

4.Reply Memorandum of Law filed November 13, 2012.