Supreme Court, Oneida County, June 22, 2022

Longstreet & Berry, LLP, Fayetteville (Martha L. Berry of counsel), for respondents.

Greenberg Traurig, LLP, Albany (Michael J. Grygiel of counsel), for petitioner.

Before the court is a petition seeking relief pursuant to CPLR article 78 in the form of an order compelling the Herkimer Police Department to disclose within 20 days all records responsive [*2]to the petitioner's Freedom of Information Law (FOIL) request, including, in particular, any records related to unsubstantiated claims and records created prior to June 12, 2020, that being the date on which Civil Rights Law § 50-a {**76 Misc 3d at 559}was repealed.^[FN1] Also before the court is a motion to dismiss the aforementioned petition pursuant to Civil Practice Law and Rules § 7804 (f) based upon certain objections in point of law and pursuant to Civil Practice Law and Rules § 409 (b) due to the alleged absence of any factual issues requiring a trial.

The court has examined the petitioner's submissions in this matter including its notice of petition, the petition itself, a memorandum of law, the numerous exhibits appended to the petition, namely, various items of correspondence between the parties regarding the FOIL request at issue, and, finally, a memorandum of law submitted by the petitioner in opposition to the respondents' motion to dismiss. Likewise, this court has examined the papers submitted by the respondents. These include a verified answer to the petition, a notice of motion, an affidavit by the Herkimer Police Department's Chief of Police, a memorandum of law, and an affirmation by attorney Berry, which was accompanied by several exhibits, including (A) chapter 96 of the Laws of 2020 reflecting a repeal of Civil Rights Law § 50-a and various amendments to Public Officers Law §§ 86, 87, and 89; (B) a purportedly relevant decision and order issued by Monroe County Supreme Court; (C) Advisory Opinion FOIL-AO-19775 (2020) issued by the Committee on Open Government; and (D) Advisory Opinion FOIL-AO-19785 (2021) issued by that same Committee. The court also reviewed the respondents' memorandum in reply to the petitioner's opposition to the motion to dismiss. Finally, this court entertained a lengthy oral argument in this matter and duly considered the points raised by counsel during the course of this argument.

By way of background, the petitioner in this matter submitted to the Herkimer Police Department a FOIL request on June 17, 2020, which sought the production of: "[a]ll materials and records describing and sufficient to show/disclose all allegations of misconduct made and all disciplinary proceedings taken against any officer, employee, or representative of [the Herkimer Police Department created from January 1, 1970, through June 15, 2020]."

After some degree of back-and-forth between the parties, the Herkimer Police Department, which consists of 20 members,{**76 Misc 3d at 560} provided the petitioner with all records responsive to the petitioner's request, with the notable exception of any records related to unsubstantiated claims and any records created prior to the date that Civil Rights Law § 50-a was repealed, which, as indicated, was June 12, 2020. The petitioner subsequently appealed to the Village of Herkimer's FOIL appeals officer with regard to the Police Department's decision to withhold these latter two categories of records but to no avail, as evidenced by the letter of Michael Longstreet, dated September 22, 2021, which was sent on behalf of the Village of Herkimer's FOIL appeals officer and indicated to the petitioner that its "appeal was denied on the authority of New York Civil Liberties Union v. City of Syracuse." Now, the petitioner seeks redress through this court.

Before delving into the specific issues and arguments in this case, this court acknowledges at the outset that "FOIL is based on a presumption of access in accordance with the underlying 'premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.' " (Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 73 [2017].) For this reason, FOIL generally "requires government agencies to 'make available for public inspection and copying all records,' " but this requirement is, very importantly, "subject to a number of exemptions." (Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 73 [2017], citing Matter of Harbatkin v New York City Dept. of Records & Info. Servs., 19 NY3d 373 [2012], Matter of Fink v Lefkowitz, 47 NY2d 567 [1979], and Public Officers Law § 87 [2].)

At issue in this particular case is whether the repeal of Civil Rights Law § 50-a and the present state of the Public Officers Law require the disclosure of all police disciplinary records, even if they relate to unsubstantiated claims of misconduct, and also whether the repeal of Civil Rights Law § 50-a should be given retroactive effect such that records predating June 12, 2020, are subject to disclosure. For the sake of organized analysis, each of these issues will be addressed in turn.

First, though, the court feels compelled to address two threshold arguments raised by the petitioner. The first of these arguments is that the respondents' motion to dismiss is not properly before the court inasmuch as the respondents simultaneously filed an answer. In support of this assertion,{**76 Misc 3d at 561} the petitioner cites to a mere footnote at the end of a decision rendered by the Schenectady County Supreme Court in Matter of Lewis v Dagostino (2020 NY Slip Op 33754[U] [Sup Ct, Schenectady County 2020]), which is obviously not controlling on this court. In the footnote to that decision, the court, which was presented with both a motion to dismiss and an answer, observed that Civil Practice Law and Rules § 7804 (f) expressly allows for a respondent to "raise an objection in point of law by setting it forth in his answer or by a motion to dismiss" and seemed to suggest that, by virtue of this disjunctive language, those two options are mutually exclusive (2020 NY Slip Op 33754[U], *1 n 2 [emphasis added]). Be that as it may, and very importantly, the petitioner in our case curiously fails to mention that, notwithstanding its musings on the issue, the Schenectady County Supreme Court nevertheless elected to consider the motion to dismiss filed in the matter before it, and this court will do likewise. The second threshold argument raised by the petitioner is that the respondents failed to invoke a specific FOIL exemption as the basis for their decision to withhold certain records, and, as a result, have waived their right to invoke any such exemptions now. This court disagrees. The initial response to the FOIL request at issue in this case and the response issued on behalf of the FOIL appeals officer expressly referenced items of case law, which very specifically addressed the personal privacy exemption provided for by Public Officers Law § 87 (2) (b) and the impropriety of applying the repeal of Civil Rights Law § 50-a retroactively. Thus, it was made sufficiently clear to the petitioner the reasons why certain records were being withheld.

[1] Having addressed these threshold arguments, the court now turns to the issue of whether records related to unsubstantiated claims ought to have been released pursuant to the petitioner's FOIL request. In support of its position on this issue, the petitioner relies, in large part, on two items of case law that are not controlling, as well as the legislative history underlying the repeal of Civil Rights Law § 50-a, and, moreover, asserted in its papers and at oral argument that a newly added provision of the Public Officers Law—that is, section 86 (6)—mandates the disclosure of law enforcement disciplinary records, whether or not those records pertain to unsubstantiated [*4]claims. Specifically, counsel for the petitioner stated that "it could hardly be more clear" and that "if you look at the new definition of law enforcement disciplinary records that is{**76 Misc 3d at 562} contained in FOIL, Public Officers Law Section 86, Subparagraph 6, it broadly defines the records that are subject to disclosure." Counsel for the petitioner further argued that it was clear from the language of the amendments that "unsubstantiated, unfounded complaints are now subject to disclosure." The cases cited by the petitioner are Uniformed Fire Officers Assn. v Blasio (846 Fed Appx 25 [2d Cir 2021]) and Schenectady Police Benevolent Assn. v City of Schenectady (2020 NY Slip Op 34346[U] [Sup Ct, Schenectady County 2020]). This court remains unconvinced by these cases and respectfully declines to follow the reasoning advanced by them. Additionally, this court is particularly unsettled by that portion of the decision rendered in Schenectady Police Benevolent Assn. v City of Schenectady, wherein the court seems to suggest that the veracity of an allegation is an utterly immaterial consideration in determining whether the disclosure of records related to that allegation is appropriate. As for the legislative history behind the repeal of Civil Rights Law § 50-a and the intent of the legislature that might be gleaned from that history, this court adopts the reasoning espoused in Matter of New York Civ. Liberties Union v City of Syracuse (72 Misc 3d 458 [Sup Ct, Onondaga County 2021]), which is one of the cases cited by the respondents. In particular, this court concurs that the " 'sovereign will is made known to us by legislative enactment' . . . [a]nd [that] it is made known in no other way." (Id. at 466.) In this same vein, it is worth noting that "[w]henever a law is adopted, all that is really agreed upon is the words." (Id., citing Scalia & Garner, Reading Law: The Interpretation of Legal Texts § 68 at 397, and Wheeler v Smith, 50 US 55 [1850].) For this reason, and because "[l]egislative intent is not something easily divined," this court must "base its determination on . . . the law as enacted." (Matter of New York Civ. Liberties Union v City of Syracuse at 466 [emphasis omitted].) The petitioner argues strenuously that the legislative history as to the repeal of Civil Rights Law § 50-a supports the notion that unsubstantiated claims of misconduct must be disclosed and that the remedial nature of the repeal requires that it be applied retroactively. Interestingly, though, the sponsor's memorandum specifically cited by the petitioner—which, incidentally, does not relate to the ultimately enacted legislation at issue, but rather an earlier bill that was never enacted—makes no reference whatsoever to unsubstantiated claims or retroactivity. Instead, that sponsor's memorandum (Assembly Mem in Support{**76 Misc 3d at 563} of 2016 NY Assembly Bill A9332) states: "The general rules and statutory exceptions of FOIL—for example in instances that disclosure would constitute an unwarranted invasion of privacy—are sufficient in protecting police from unfair cross examination by criminal defense lawyers."^[FN2] In this court's view, this statement supports the holding in Matter of New York Civ. Liberties Union v City of Syracuse, as well as the pertinent advisory opinions on the subject, that the disclosure of records related to unsubstantiated claims would constitute an unwarranted invasion of personal privacy.

Finally, as to the petitioner's position that Public Officers Law § 86 (6) somehow directs the disclosure of records concerning unsubstantiated claims, this court notes that Public Officers Law § 86 (6) mentions nothing about disclosure; it merely defines the phrase "law enforcement disciplinary records," which phrase is then employed in Public Officers Law §§ 87 (4-a), (4-b), and 89 (2-b), (2-c), and nowhere else. And very significantly, these sections of law do nothing more than allow for—and in some instances, mandate—redactions relative to "law enforcement disciplinary records," which, in this court's view, go above and beyond—but, importantly, do not change or weaken—the various exemptions provided for by Public Officers Law § 87 (2), which apply to law enforcement officers the same as they do to public servants generally.^[FN3]

The respondents, for their part, acknowledge that the "repeal of Civil Rights Law § 50-a removed the extra layer of protection [previously afforded to] police employment records," but {**76 Misc 3d at 564}they also correctly highlight that the protection afforded by Public Officers Law § 87 (2) (b), which is applicable to public servants generally, was not in any way altered or diminished by that repeal. That provision of the Public Officers Law expressly exempts from disclosure any records, which, if released, would result in "an unwarranted invasion of personal privacy." Moreover, this court is aware of at least two appellate cases, one of which was cited by the respondents, that stand for the proposition that an unwarranted invasion of personal privacy would be wrought by the disclosure of records related to unsubstantiated claims. See Matter of Western Suffolk Bd. of Coop. Educ. Servs. v Bay Shore Union Free School Dist. (250 AD2d 772, 772 [2d Dept 1998]), dealing with "unproven disciplinary charges," and Matter of LaRocca v Board of Educ. of Jericho Union Free School Dist. (220 AD2d 424, 427 [2d Dept 1995]), dealing with "charges [that] were denied and/or not admitted." To be sure, these cases were decided by the Appellate Division, Second Department, but the petitioner has not cited any decisional authority from the Appellate Division, Fourth Department, to suggest that this court is not bound by these decisions or, at least, free to follow them. Additionally, this court is persuaded by the multiple Advisory Opinions issued by the Committee on Open Government, which take the position that, "when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may be withheld" on the ground that "disclosure would result in an unwarranted invasion of personal privacy." (See Comm on Open Govt FOIL-AO-19775 [2020], citing Comm on Open Govt FOIL-AO-17195 [2008], and Comm on Open Govt FOIL-AO-19785 [2021].) And while this court is mindful that opinions from the Committee on Open Government are not binding authority, it is also true that, "[s]ince the Committee is the state agency charged with administering the Freedom of Information Law, its interpretation of the statute, if not irrational or unreasonable, should be upheld." (Matter of Miracle Mile Assoc. v Yudelson, [*5]68 AD2d 176, 181 [4th Dept 1979], citing Matter of Sheehan v City of Binghamton, 59 AD2d 808 [3d Dept 1977]; see also Matter of TJS of N.Y., Inc. v New York State Dept. of Taxation & Fin., 89 AD3d 239 [3d Dept 2011].) Most importantly, as the court aptly pointed out in Matter of New York Civ. Liberties Union v City of Syracuse (72 Misc 3d at 467), "the public interest in the release of unsubstantiated claims does not outweigh the{**76 Misc 3d at 565} privacy concerns of individual officers." For these reasons, this court finds that Public Officers Law § 87 (2) (b) may indeed be invoked to withhold records related to unsubstantiated claims of misconduct.

[2] Next, this court turns to the issue of whether the repeal of Civil Rights Law § 50-a ought to be given retroactive effect, thereby requiring the disclosure of records that predate the repeal. On this issue, it bears mentioning at the outset that Civil Rights Law § 50-a was repealed and not replaced and that the legislature declined to require that the repeal was to be applied retroactively. The petitioner concedes this point and, furthermore, acknowledges that "retroactive operation is not favored by the Courts." Despite this, the petitioner argues that the repeal of Civil Rights Law § 50-a should be applied retroactively on the purported ground that the repeal was remedial in nature and, in support of its argument in this regard, claims that "courts throughout New York State have repeatedly confirmed" as much. The reality, though, is that the petitioner cites to only two cases that, once again, are not controlling and that this court finds unpersuasive on the issue of retroactivity. These cases are Matter of Puig v City of Middletown (71 Misc 3d 1098 [Sup Ct, Orange County 2021]) and Schenectady Police Benevolent Assn. v City of Schenectady (2020 NY Slip Op 34346[U] [Sup Ct, Schenectady County 2020]), the latter of which was also cited by the petitioner relative to its argument concerning the disclosure of records concerning unsubstantiated claims. The petitioner neglected to mention People v Francis (74 Misc 3d 808 [Sup Ct, Monroe County 2022])—a subsequently decided case, which took specific exception to the decision in Puig and which this court finds very well-reasoned and extremely compelling.

Like the court in Francis, this court is mindful that a statute should not be construed to apply retroactively unless the language of the statute expressly or by necessary implication requires it. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].) This is a "fundamental canon of statutory construction," and, while retroactive application of remedial legislation might be appropriate, as claimed by the petitioner, the Court in Majewski was careful to stress that "[c]lassifying a statute as 'remedial' does not automatically overcome the strong presumption of prospectivity." (Id. at 584.) The petitioner, in its effort to overcome this presumption, invokes the legislative history behind the repeal of Civil Rights{**76 Misc 3d at 566}Law § 50-a to suggest that the repeal was remedial and should be given retroactive effect, but, very importantly, as the court in Francis alluded, and as far as this court can tell, the legislative history underlying the repeal makes no specific mention whatsoever of retroactivity. Moreover, in weighing the issue of retroactivity, the court in Francis astutely looked to General Construction Law § 93 and the case law interpreting that provision of law, which provides in pertinent part that the "repeal of a statute . . . shall not affect or impair any . . . right . . . accrued or acquired . . . prior to the time such repeal takes effect . . . but the same may be enjoyed . . . as fully and to the same extent as if such repeal had not been effected." That section of law, according to the Court of Appeals in People v Roper (259 NY 635, 635 [1932]), provides a "principle of construction to be applied in determining the scope of legislation which expressly or impliedly repeals earlier statutes . . . [and] [i]n the absence of evidence of contrary intent such legislation is not to be given retroactive [*6]effect." Very importantly, the Court of Appeals in Roper (259 NY at 635) also noted that General Construction Law § 93 applies with "special force to statutes which otherwise would . . . deprive persons of substantial rights," and, as the court in Francis pointed out, former Civil Rights Law § 50-a undoubtedly conferred upon police officers substantial rights and protections. (Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556 [2018].) Finally, this court is particularly moved by the equitable argument against retroactivity that was raised by the court in Francis. In sum, the equitable argument is that, from the date on which Civil Rights Law § 50-a was enacted until the date of its repeal, police officers relied upon the protections afforded by that statute in making decisions with regard to disciplinary actions and that it would be patently unfair to now reach back and lay bare the records that those officers justifiably believed would remain shielded from public disclosure. Accordingly, this court unequivocally concludes that the repeal of Civil Rights Law § 50-a must not be given retroactive effect.

Now, therefore, upon reading and filing the papers and after the oral argument held on April 27, 2022, with respect to the petition and motion, and due deliberation having been had thereon, it is hereby, in accordance with the above, ordered that the motion to dismiss brought by the respondents is{**76 Misc 3d at 567} granted; and it is further ordered that the petition is denied in its entirety.