Supreme Court, Onondaga County, May 5, 2021

Caitlin Elizabeth Feeney and Michael Lacovara for petitioner.

John G. Powers for respondents.

On March 18, 2021, petitioner New York Civil Liberties Union (NYCLU) filed a petition (NY St Cts Elec Filing [NYSCEF] Doc No. 1) with a notice of petition (NYSCEF Doc No. 2) seeking to compel respondents to release certain documents pursuant to Public Officers Law § 84 et seq., commonly known as the Freedom of Information Law (FOIL), and is now seeking enforcement via article 78 of the CPLR for an order of mandamus. The parties requested a brief adjournment of the matter (NYSCEF Doc No. 25), which was granted and the matter was placed on the court's calendar for April 29, 2021 (NYSCEF Doc No. 26). On April 14, 2021, respondents answered the petition (NYSCEF Doc No. 36) and moved to dismiss the petition (NYSCEF Doc No. 27 et seq.).

Petitioner alleges that on September 15, 2020, it submitted a FOIL request to the Syracuse Police Department (SPD) seeking, inter alia, disciplinary records, records relating to the use of force, records relating to stops/temporary detentions/field interviews, complaints about misconduct, immigration-related enforcement, Syracuse Citizen Review Board records, records concerning diversity in ranks, and additional policies and agreements ([*2]NYSCEF Doc No. 5, the FOIL request). On September 23, 2020, respondents acknowledged receipt of the FOIL request and stated that "our initial estimate is that the collection, review, and redaction of these records will require one (1) year from the date of this letter" (NYSCEF Doc No. 6, the FOIL acknowledgment). In November 2020, the parties met concerning the FOIL request, whereat respondents allegedly committed to a "rolling production of documents partially responsive to the Request" (see NYSCEF Doc No. 1, petition ¶ 2). In a letter dated November 17, 2020, respondents denied that portion of the FOIL request seeking disciplinary records related to complaints not yet substantiated (NYSCEF Doc No. 7). Petitioner alleges this denial is unlawful and is the focus of this proceeding (see NYSCEF Doc No. 1, petition ¶ 3). Petitioner alleges respondents' partial denial contravenes the plain language of the recent repeal of Civil Rights Law § 50-a (ibid. ¶ 6).

Petitioner notes that under FOIL, government records are "presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2)" (Matter of Gould v New York City Police{**72 Misc 3d at 460} Dept., 89 NY2d 267, 274-275 [1996]). Petitioner asserts that the repeal of Civil Rights Law § 50-a "commands the disclosure of all disciplinary records, regardless of status or disposition" (see NYSCEF Doc No. 3, mem of law at 5). Petitioner alleges that the legislature considered and rejected a narrower version of the Civil Rights Law § 50-a repeal which would have limited the release of documents to substantiated claims (see 2019-2020 NY Senate Bill S4213). Petitioner notes that Public Officers Law § 89 was also amended to create limited disclosure shields for certain personal information relative to police officers (see e.g. Public Officers Law § 89 [2-b], [2-c]).

Petitioner argues that respondents' interpretation of Public Officers Law § 87 (2) (b) would nullify the repeal of Civil Rights Law § 50-a. Petitioner points to comments made during the debate of the bills where it was proffered that the intent was specifically to look at the process, not just the results, of disciplinary proceedings (see NY Senate Debate on Senate Bill S8496, June 9, 2020 at 1805-1806). Petitioner further alleges that other courts have rejected respondents' interpretation (see Schenectady Police Benevolent Assn. v City of Schenectady, 2020 NY Slip Op 34346[U], *10-11 [Sup Ct, Schenectady County 2020]; see also Buffalo Police Benevolent Assn., Inc. v Brown, 69 Misc 3d 998, 1002-1003 [Sup Ct, Erie County 2020]). Petitioner urges the court to grant the relief sought.

Petitioner further argues it is entitled to attorneys' fees. Petitioner notes the court:

"(i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time; and (ii) shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" (Public Officers Law § 89 [4] [c]).

Petitioner asserts that SPD has invoked a "personal privacy" exemption that was specifically rejected by the legislature and therefore the denial was done without a reasonable basis.{**72 Misc 3d at 461}

Respondents answered and generally denied (see NYSCEF Doc No. 36, answer). Respondents further move to dismiss the petition pursuant to CPLR 7804 (f) and 409 (b) (NYSCEF Doc No. 27 et seq.). Respondents assert that the repeal of Civil Rights Law § 50-a did not result in a change of FOIL resulting in police officers being treated less favorably than other public employees (see NYSCEF Doc No. 28, affirmation ¶¶ 3-4). Respondents note the repeal did not change, let alone mention Public Officers Law § 87 (2) (b), the personal privacy exemption (ibid. ¶ 5; see also L 2020, ch 96). Respondents cite numerous cases where courts determined that Public Officers Law § 87 (2) (b) required unsubstantiated records to be shielded (see Matter of Western Suffolk Bd. of Coop. Educ. Servs. v Bay Shore Union Free School Dist., 250 AD2d 772, 773 [2d Dept 1998]; Matter of LaRocca v Board of Educ. of Jericho Union Free School Dist., 220 AD2d 424, 427 [2d Dept 1995]; Santomero v Board of Educ. of the Bedford Central Sch. Dist., 2009 WL 6860644 [Sup Ct, Westchester County, Dec. 23, 2009, No. 08-25405]; Matter of Herald Co. v School Dist. of City of Syracuse, 104 Misc 2d 1041 [Sup Ct, Onondaga County 1980]). Respondents also point to an Advisory Opinion (AO) from the Committee on Open Government which similarly found Public Officers Law § 87 (2) (b) affords public employees, including police officers, certain privacy protections in regards to "unsubstantiated and unfounded complaints" (see NYSCEF Doc No. 31, Comm on Open Govt FOIL-AO-19775 [2020]). Respondents also point to the floor debate of the repeal of Civil Rights Law § 50-a which they claim supports their position (see NYSCEF Doc No. 29, NY Assembly Debate, June 9, 2020 at 60, 170, 176, 211).

Respondents argue the cases cited by petitioner are irrelevant to the issues at bar. The Committee on Open Government reviewed the same cases proffered by petitioner and dismissed them as not being on point (see NYSCEF Doc No. 32, Comm on Open Govt FOIL-AO-19785 [2021]). Respondents urge the court to grant deference to the Committee on Open Government's interpretation of the relevant statutes (see Matter of Forsyth v City of Rochester, 185 AD3d 1499 [4th Dept 2020]). Respondents proceed to distinguish the petitioner's proffered cases from the facts at issue.

Respondents also argue that petitioner failed to preserve the issue as they did not take an administrative appeal (see Matter of Ayuso v Graham, 177 AD3d 1389, 1390 [4th Dept 2019]). Respondents allege that petitioner only appeals two issues: (a){**72 Misc 3d at 462} whether the SPD's response was deficient because it did not fully articulate the reasons for the denial; and (b) whether the repeal of Civil Rights Law § 50-a mandated disclosure of all police disciplinary records regardless of the existence of other applicable FOIL exemptions. Respondents argue any challenge to SPD's application of Public Officers Law § 87 (2) (b), outside of the petitioner's argument concerning the repeal of Civil Rights Law § 50-a, was waived.

Respondents argue that their denial of petitioner's FOIL request was reasonable in light of respondents' reliance on the opinion from the Committee on Open Government; thus, petitioner is not entitled to an award of attorneys' fees and costs.

Petitioner replies and notes the singular issue before the court concerns "SPD's categorical refusal to produce law enforcement disciplinary records if those records relate to complaints that were not substantiated or remain open" (NYSCEF Doc No. 40, mem of law at 1). Petitioner further asserts: "All the NYCLU seeks is to hold the SPD to the strictures of FOIL in a manner consistent with (a) the text and structure of the statute, (b) other recent court decisions, and (c) the 'Advisory Opinion' that the SPD invokes repeatedly" (ibid.). Petitioner asserts respondents have taken an overbroad approach to Public Officers Law §§ 87 (2) (b) and 89 (2) (ibid. at 2). Petitioner relies on opinions from courts which are not binding upon this court to substantiate their opinion (see e.g. People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U], *5 [Nassau Dist Ct 2021]). Petitioner argues that the privacy exceptions of Public Officers Law § 87 do not exist in a vacuum but must be read in concert with Public Officers Law § 89. Petitioner further argues that Public Officers Law § 89 defines the scope of the privacy exception (NYSCEF Doc No. 40, mem of law at 6).

Petitioner further argues that the cases cited by respondents are irrelevant to the matter at hand and "misdirection" (ibid. at 7). Petitioner argues that Herald Co. v School Dist. of City of Syracuse was decided based upon the exceptions in Public Officers Law § 87 (2) (a) and (g), not Public Officers Law § 87 (2) (b) (ibid. at 8; see also Herald Co. at 1045-1047). The court in Herald Co. specifically declined to "determine whether the records sought would constitute an unwarranted invasion of privacy if disclosed" (Herald Co. at 1047). Petitioner also argues that the legislative intent of the repeal of Civil Rights Law{**72 Misc 3d at 463} § 50-a was to open all records to public inspection, regardless of whether the claims were substantiated (see Schenectady Police Benevolent Assn. v City of Schenectady). Petitioner prays this court grant the requested relief.

The matter was heard virtually on April 29, 2021. The parties reiterated their arguments and highlighted what they believed to be their strongest points. Petitioner denied that they waived any arguments as alleged by respondents. Petitioner further noted the issue before the court was the narrow question regarding the release of "unsubstantiated" records. Upon questioning by the court, petitioner acknowledged there were two categories, unsubstantiated and open claims, but that petitioner generally believed both categories fell under the heading of unsubstantiated. Petitioner further argued that the legislature defined what the privacy interests of the subject police officers were in Public Officers Law § 89.

Respondents argued that the information protected under Public Officers Law § 89 (2-b) and (2-c) is the minimum an agency should redact, not a maximum. A point petitioner later conceded: that Public Officers Law § 89 (2) was not an exhaustive list. Respondents further argued that the documents sought by petitioner did not need to be itemized if they fell into a category of information protected by Public Officers Law § 87, such as unsubstantiated claims against police officers.

Respondents analogized the release of unsubstantiated claims against police officers to the attorney and judicial grievance processes. Respondents noted that in both those instances, unsubstantiated attorney and judicial grievances are not publicly released. Respondents argue the same logic applies in that unsubstantiated claims are just that, unsubstantiated, and that the potential injury to an individual's reputation outweighs the public's right to know.

Both parties conceded that records related to unsubstantiated and open claims may fall into more than one category of protected information, as exemplified by Herald Co.

Discussion

Petitioner seeks an order of the court "directing Respondents to comply with its duty under FOIL to disclose copies of all law enforcement disciplinary records collected by the SPD, regardless of disposition, sought by Petitioner in the FOIL Request dated September 15, 2020" (see NYSCEF Doc No. 1, petition at 10). The subject matter of the petition is focused on respondents'{**72 Misc 3d at 464} November 17, 2020 denial letter (see NYSCEF Doc No. 1, petition ¶ 3; see also NYSCEF Doc No. 7, denial letter; see also NYSCEF Doc No. 40, mem of law at 1). The documents denied fall into two categories: (1) matters which are "open"; and (2) closed matters which were not substantiated. Collectively, the court considers these categories to be "unsubstantiated" matters. Petitioner alleges that the repeal of Civil Rights Law § 50-a means that both categories of documents are now open for public review.

Civil Rights Law § 50-a allowed agencies to deny FOIL requests which sought personnel records of, inter alia, police officers (see generally Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556 [2018]). "Personnel records include documents relating to misconduct or rule violations by police officers" (Matter of Columbia-Greene Beauty Sch., Inc. v City of Albany, 121 AD3d [*3]1369, 1370 [3d Dept 2014]). Civil Rights Law § 50-a was repealed effective June 12, 2020 (see L 2020, ch 96). In the same law, the legislature also defined "[l]aw enforcement disciplinary records" (see Public Officers Law § 86 [6]). The legislature also provided that certain personal information must be redacted from any law enforcement disciplinary records which an agency releases (see Public Officers Law §§ 87 [4-a], [4-b]; 89 [2-b], [2-c]). The repeal of Civil Rights Law § 50-a made no other changes (see L 2020, ch 96).

Public Officers Law § 87 (2) (b) exempts from disclosure any record or part of a record which "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." As noted by respondents, the disclosure of unsubstantiated complaints has been considered exempt as an invasion of personal privacy (see e.g. Matter of LaRocca v Board of Educ. of Jericho Union Free School Dist., 220 AD2d 424, 427 [2d Dept 1995]). This view is also held by the Committee on Open Government (see NYSCEF Doc No. 31, Comm on Open Govt FOIL-AO-19775 [2020]). The Committee on Open Government specifically states, "there is nothing in the statute to suggest that the legislature intended that any of the records of law enforcement agency employees be more available than the records of other government employees" (ibid.).

The cases cited by petitioner do not support its position. For example, in Buffalo Police Benevolent Assn., Inc. v Brown, the issue to be determined was a temporary restraining order{**72 Misc 3d at 465} (TRO) and other injunctive relief and such relief was denied as the petitioners had failed to exhaust their administrative remedies (see Buffalo Police Benevolent Assn., Inc. v Brown, 69 Misc 3d 998, 1001 [Sup Ct, Erie County 2020]). While the court in Buffalo Police Benevolent Assn. declined to provide a "blanket prohibition," in the form of a TRO, on the disclosure of certain employment records, neither did it hold that the subject records should be disclosed wholesale:

"Finally, it should be noted that the court's rulings do not mean that police disciplinary records—whether requested by the Buffalo Common Council or whether demanded by some other entity by some other method—shall be released or must be released. The court is not mandating or otherwise authorizing the public release of any particular records. That decision will presumably be made by the respondents in accordance with the provisions and exemptions set forth in the Public Officers Law, including section 87 (2) (b)" (Buffalo Police Benevolent Assn. at 1004-1005).

Buffalo Police Benevolent Assn. does not purport to stand for the proposition that records must be released.

In Schenectady Police Benevolent Assn., the court noted the repeal of Civil Rights Law § 50-a resulting in "access to law enforcement personnel records, including disciplinary history, is now governed by FOIL alone" (Schenectady Police Benevolent Assn. at *8 [emphasis omitted]). However, our sister court in Schenectady Police Benevolent Assn. then goes against the previous decisions on unsubstantiated complaints by stating: "In terms of public access, it is of little consequence that records contain unsubstantiated charges or mere allegations of misconduct" (id. at *10). The court in Schenectady Police Benevolent Assn. further relies on its interpretation of "legislative intent":

"In our current times, our state lawmakers have seen fit to require disclosure of police personnel records, upon FOIL request, even when such records reflect no more than [*4]allegations. They, presumably, did so in the name of opening the door to transparency, and having done so, it would be palpably improper for this Court to close it. It strikes the Court that the legislature intended not just a change in law but, rather, a change in culture. It is the Court's function to enforce the current laws in{**72 Misc 3d at 466} a manner that reflects that intention" (id. at *15).

This court respectfully disagrees.

Legislative intent is not something easily divined from the minds of dozens of legislators.

"The traditional view is that an enacted text is itself the law. As the Supreme Court of the United States wrote in 1850: 'The sovereign will is made known to us by legislative enactment.' And it is made known in no other way. Or as an early-20th-century theorist put the point: '[w]henever a law is adopted, all that is really agreed upon is the words' " (Scalia & Garner, Reading Law: The Interpretation of Legal Texts § 68 at 397, citing Wheeler v Smith, 50 US 55, 78 [1850], and Josef Kohler, Judicial Interpretation of Enacted Law, Science of Legal Method: Select Essays by Various Authors 187, 196 [1917]).

Both sides have proffered examples from the legislative record which they purport to support their respective positions. All this court can base its determination on is the final product: the law as enacted.

The law clearly repealed Civil Rights Law § 50-a (L 2020, ch 96, § 1). The law also provided added definitions (ibid. § 2), as well as providing certain items which must be redacted prior to release (ibid. §§ 3, 4). What the law did not provide for was altering previously existing privacy considerations. The release of unsubstantiated claims has been previously found to be prohibited by Public Officers Law § 87 (2) as an unwarranted invasion of privacy (see Matter of LaRocca). When considering the repeal of Civil Rights Law § 50-a through the lens of previous case law, the court has no choice but to deny the request for an order releasing all unsubstantiated discipline records.

The court further agrees with respondents in their analogy with attorney and judicial grievances. For example, Judiciary Law § 90 (10) states in pertinent part:

"all papers, records and documents upon the application or examination of any person for admission as an attorney and counsellor at law and upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential."

The Court of Appeals in Matter of Nichols v Gamso (35 NY2d 35, 38 [1974]) stated:{**72 Misc 3d at 467}

"Internal judicial investigations of charges or complaints against judicial officers are confidential, and no authority, decisional or statutory, suggests otherwise. When, however, such charges or complaints are sustained and the determinations are made public by the court with jurisdiction of the charges, it may be an abuse of discretion, as a matter of public policy, absent compelling circumstances affecting the public interest, not to make available to public scrutiny so much of the record and proceedings as bear on the charges sustained."

The logic is persuasive. Certainly there is no greater public interest in fairness and justice than our own courts and legal system which should also be weighted similarly among police officers' and other public employees' right to privacy including those other exemptions to disclosure under the Public Officers Law. Contrary to petitioner's assertions, the repeal of Civil Rights Law § 50-a does not [*5]require documents related to unsubstantiated claims against police officers to be released. Further, the public interest in the release of unsubstantiated claims does not outweigh the privacy concerns of individual officers.

Another point conceded by the parties was that records related to unsubstantiated and open claims may also fall into other categories of restricted material. Public Officers Law § 87 (2) (e) restricts the release of information which would interfere with law enforcement investigations or judicial proceedings. Certainly open claims would fall into this category. Further, as relied upon in Herald Co., Public Officers Law § 87 (2) (g) precludes certain inter- and intra-agency documents which are not final determinations.

As the court has denied the release of documents pursuant to FOIL, the request for attorneys' fees and costs is moot. However, even had the court granted the release of documents, the respondents have demonstrated a reasonable basis to withhold the documents based upon the opinions of the Committee on Open Government and other relevant case law (see Public Officers Law § 89 [4] [c]).

Now, therefore, upon reading and filing the papers and the arguments held on April 29, 2021, with respect to the petition and motion, and due deliberation having been had thereon, it is hereby ordered that the motion to dismiss made by respondents City of Syracuse and Syracuse Police Department is{**72 Misc 3d at 468} hereby granted; and it is further ordered that the petition is denied in its entirety.