Supreme Court, Monroe County, November 17, 2022

David M. Abbatoy, Jr., petitioner pro se.

Monroe County Law Department (Adam M. Clark of counsel) for respondents.

Blitman & King LLP (Nolan J. Lafler of counsel) for intervenor/respondent.

In this CPLR article 78 petition petitioner seeks pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) past disciplinary records of the nine respondent Monroe County Sheriff's deputies. For the reasons that follow, the petition is denied.

Findings of Fact [*2]

In May of 2021, petitioner submitted nine separate requests under FOIL for documentation of disciplinary records for nine members of the Monroe County Sheriff's Office (each named as a respondent herein).^[FN1] The FOIL requests sought "law enforcement disciplinary records" for the named respondents from the time of their initial employment until December 31, 2017. Respondent Todd Baxter, Monroe County Sheriff, denied the FOIL requests, relying principally upon the decision in Brighton Police Patrolman Assn. v Catholdi (2021 NY Slip Op 32978[U] [Sup Ct, Monroe County 2021]).^[FN2] Petitioner subsequently appealed to the Monroe County Records Appeal Officer, but the appeal was denied, with the County again relying upon Brighton Police Patrolman Assn. v Catholdi as the primary reason for denial.^[FN3]

Relevant to the issues herein, Justice Taddeo held in Brighton Police Patrolman Assn. v Catholdi that the repeal of Civil Rights Law § 50-a should not be given retroactive effect as retroactive application of the statute and disclosure of the requested prior disciplinary records would violate General Construction Law § 93,^[FN4] as "[Brighton police] officers represented by the Union have, over time, entered into settlement{**77 Misc 3d at 713} agreements with BPD, and have relied on a condition that such settlements would remain confidential."^[FN5]

Petitioner now brings an article 78 petition pursuant to Public Officers Law § 89 (4) (b) and CPLR 7804 seeking a determination that respondent's denial was improper.^[FN6] Respondents and intervenor/respondent^[FN7] moved to dismiss the petition, arguing that respondent Baxter and [*3]the County of Monroe properly denied petitioner access to the disciplinary records. That motion was denied.^[FN8]

Respondents and intervenor/respondent submitted answers to the petition.^[FN9] Respondents and intervenor/respondent raise several defenses which allege, in sum and substance, that the repeal of Civil Rights Law § 50-a was not retroactive due to the application of General Construction Law § 93 to respondents' past disciplinary outcomes.^[FN10]

In support of their defenses, respondents and intervenor/respondent submit the affidavit of Scott E. Walsh^[FN11] and John Auberger.^[FN12] Mr. Walsh stated that he was the former president of the Monroe County Police Benevolent Association, the union{**77 Misc 3d at 714} for the police bureau of the Monroe County Sheriff's Office.^[FN13] Mr. Auberger stated that he was the former president of the Monroe County Sheriff Police Benevolent Association.^[FN14] Both Walsh and Auberger averred that as president of their respective unions they would represent and counsel union members who were charged with disciplinary offenses. They both stated that it was common for union members, including two of the named respondents herein, to waive their due process rights to a formal hearing and binding arbitration in exchange for a lesser punishment and the understanding that former Civil Rights Law § 50-a would provide confidentiality to the disciplinary records and settlement.^[FN15]

Conclusions of Law

It is undisputed that prior to the repeal of Civil Rights Law § 50-a its provisions, and numerous court decisions interpreting the scope of those provisions, provided substantial confidentiality protections to police officers who were the subject of disciplinary proceedings. The justification section of the Senate Introducer's Memorandum in Support of 2020 NY Senate Bill S8496 (the proposed bill, enacted as L 2020, ch 96, to repeal Civil Rights Law § 50-a) states:

"According to the 2014 annual report by the State Committee on Open Government to the Governor and the State Legislature, '[Civil Rights Law § 50-a] has been expanded in the courts to allow police departments to withhold from the public virtually any record that contains any information that could conceivably be used to evaluate the performance of a police officer.' "

As noted by the Court of Appeals in Matter of New York Civ. Liberties Union v New York City Police Dept. (32 NY3d 556 [2018]), the statute also established "specific procedural rights and mechanisms designed to implement its protective goals." (Id. at 565.)

The protections afforded police officers by section 50-a were not absolute, as the statutory [*4]procedures within section 50-a allowed disclosure upon either consent of the officer, or a court order. A court order was only proper when the requested records were "relevant and material" in the action before the court. (See former Civil Rights Law § 50-a [3], repealed by L 2020, ch {**77 Misc 3d at 715}96, § 1.) However, the protections afforded by section 50-a were not limited to FOIL requests made in the context of litigation. Even if the requestor was not engaged in current (or prospective) litigation, section 50-a operated to shield disclosure if the risk of use of the records was to embarrass or humiliate the officers involved. (See Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145 [1999]; see also Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., 150 AD3d 13, 25 [1st Dept 2017] ["While there may be no intent to embarrass or humiliate the officer in question by any of the parties or amici herein, there can be no question that once this information is released, it 'will be fully available for all of the forms and practices of abusive exploitation that Civil Rights Law § 50-a was designed to suppress.' Where 'a substantial and realistic potential' of endangerment or harassment to either public servants or potential witnesses resulting from disclosure has been shown, the appellate courts of this state have consistently denied disclosure under both Civil Rights Law § 50-a and Public Officers Law § 87 (2) (a)" (citations omitted)].)

It is also undisputed that police officers facing disciplinary proceedings would rely upon the confidentiality provisions contained in Civil Rights Law § 50-a in determining whether to accept a lesser punishment and waive their due process rights to a hearing and accept a lesser punishment.

The records sought by petitioner herein would have been subject to the confidentiality protections afforded by Civil Rights Law § 50-a. Respondent Baxter denied access to the requested records citing Brighton Police Patrolman Assn. v Catholdi, and the Monroe County Records Appeal Officer specifically relied upon the portion of that decision which held that "the repeal of Civil Rights Law § 50-a [protections] is not to be applied retroactively" in denying petitioner's appeal (2021 NY Slip Op 32978[U], *5).^[FN16]

{**77 Misc 3d at 716}Although Civil Rights Law § 50-a was repealed in 2020^[FN17] respondents and intervenor/respondent argue that General Construction Law § 93 operates to shield the disclosure of the records requested by petitioner herein. That section states:

"The repeal of a statute or part thereof shall not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected."

Certainly, the confidentiality protections afforded by Civil Rights Law § 50-a were a right accrued by respondent deputies prior to the repeal of section 50-a. The purpose of the statute was to shield disclosure of records such as those sought by petitioner herein. Respondent deputies, and similarly situated deputies, relied upon those protections in deciding to waive significant due process protections afforded by an arbitration hearing and in accepting a lesser, negotiated punishment. In doing so, section 50-a specifically shielded those records from disclosure. It cannot be said that these rights to confidentiality were anything less than substantial, vested rights.

The protections afforded by General Construction Law § 93 would apply to protect respondent deputies' previously accrued rights to confidentiality even though Civil Rights Law § 50-a has been repealed unless the statute repealing section 50-a clearly indicated a contrary intent. General Construction Law § 110 states: "This chapter is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter." The Court of Appeals has

"long recognized that the General Construction{**77 Misc 3d at 717} Law places no restraint on the Legislature beyond the restrictions in the Constitution (see People v Roper, 259 NY 635, 635 [per curiam] [1932] ['In the absence of evidence of contrary intent such legislation (i.e., laws repealing other laws) is not to be given retroactive effect' (emphasis added)])." (Kellogg v Travis, 100 NY2d 407, 411 [2003].)

It is clear that by repealing section 50-a the legislature intended to remove the right to confidentiality of personnel records police officers had previously enjoyed. Whether the repeal of Civil Rights Law § 50-a is to be given retroactive effect to allow disclosure of police personnel records (including disciplinary records) is the central issue herein. If the statute repealing section 50-a expressed a legislative intent to require disclosure of records created prior to its effective date, then General Construction Law § 93 does not apply and petitioner is entitled to the records requested in his FOIL request. Conversely, if no legislative intent can be discerned from the repealing legislation, General Construction Law § 93 would control and the petition must be denied.

"The general rule is clear. Statutes dealing with matters other than procedure are not to be applied retroactively absent a plainly manifested legislative intent to that effect. (See, e. g., Garzo v Maid of Mist Steamboat Co., 303 NY 516, 522; Shielcrawt v Moffett, 294 NY 180, 188; Addiss v Selig, 264 NY 274, 281; Jacobus v Colgate, 217 NY 235, 240.) The rule recognizes that people guide their affairs in the light of existing laws and that it would be unfair to defeat the expectations, rights and liabilities arising under those laws by subsequent retroactive changes." (People v Oliver, 1 NY2d 152, 157-158 [1956].)

The repealing statute is silent regarding the legislative intent on its retroactive application. The entirety of the repealing legislation relevant to the issues herein states: "Section 1. Section 50-a of the civil rights law is REPEALED." (L 2020, ch 96.) Although the act states it is to "take effect immediately," " 'the meaning of the phrase is equivocal' in an analysis of retroactivity (Becker v Huss Co., 43 NY2d 527, 541)." (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998].)

As the Court of Appeals held in Majewski v Broadalbin-Perth Cent. School Dist., retroactive "operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it." {**77 Misc 3d at 718}(Id. at 584.) There are two exceptions—remedial statutes and statutes governing procedural matters. (Id.) Clearly, the repeal of section 50-a did not involve procedural matters.

In reviewing the language of the repealing statute and the legislative history, the intent of the legislature as to retroactive operation cannot be discerned. There is insufficient evidence that it was the intent of the legislature that the repeal of section 50-a was to be applied retroactively; certainly not enough to overcome the strong presumption that laws are to be prospective in operation. "That a statute is to be applied prospectively is strongly presumed and here, we find nothing that approaches any type of 'clear' expression of legislative intent concerning retroactive application." (Majewski v Broadalbin-Perth Cent. School Dist. at 589; see also McKinney's Cons Laws of NY, Book 1, Statutes § 51 [b] ["Generally, statutes are construed as prospective, unless the language of the statute, either expressly or by necessary implication, requires that it be given a retroactive construction"].) Here, the statute is silent as to retroactivity. The Senate Introducer's Memorandum in Support is silent as to retroactivity. The justification section of the memorandum is silent as to retroactivity. Absent clear statutory text regarding retroactive application, other factors may be employed to discern legislative intent, such as legislative debates or statements by officials, but they offer little value here.

Petitioner cites to statements made by the Governor during a press conference (and contained in a press release) as evidence of intended retroactive operation of the law repealing section 50-a.^[FN18] Respondents argue that pending legislation in the New York State Legislature (2022 NY Assembly Bill A9050, 2022 NY Senate Bill S8428) designed to clarify that the repeal of section 50-a is to be given retroactive operation is proof that the initial repeal of section 50-a was not intended to be retroactive. At best, the evidence proffered by petitioner and respondents{**77 Misc 3d at 719} is equivocal and does [*5]not overcome the strong presumption that new legislation is not to be given retroactive application unless it is clearly stated. (See Addiss v Selig, 264 NY 274, 281 [1934] ["Statutes dealing with matters other than those of procedure will not be interpreted as retroactive unless such intent of the Legislature clearly appears from its terms. (Orinoco Realty Co. v Bandler, 233 NY 24, 28.) 'Words in a statute ought not to have a retrospective operation unless they are so clear, strong, and imperative, that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. This rule ought especially to be adhered to, when such a construction will alter the pre-existing situation of parties, or will affect or interfere with their antecedent rights. . . .' (United States v. Heth, 3 Cranch, 399, p. 413)"].)

Additionally, the repeal of section 50-a was not a "remedial" statute requiring retroactive application. " 'Remedial statutes are those "designed to correct imperfections in prior law, by generally giving relief to the aggrieved party" ' (Coffman v Coffman, 60 AD2d 181, 188)." (Matter of Cady v County of Broome, 87 AD2d 964, 965 [3d Dept 1982].) The statute repealing section 50-a does not create a new remedy for a wrong for which there was previously no remedy (Shielcrawt v Moffett, 294 NY 180, 190 [1945]), nor does it "rectify an inequity by extending existing benefits to a class of persons arbitrarily denied those benefits by the original legislation" (Matter of Cady v County of Broome at 965). Assuming, arguendo, the repealing statute was remedial in nature, it cannot be applied retroactively as it would impair a vested right of respondents—confidentiality in their personnel records provided by Civil Rights Law § 50-a. (Id.)

As the statute repealing section 50-a, and its legislative history, is silent as to retroactivity, it is not remedial in nature, and it impairs significant, vested rights of respondents, it is not retroactive in operation. Thus, petitioner is not entitled to the disclosure of the respondents' disciplinary records as requested in petitioner's FOIL requests.

Judgment

It is ordered and adjudged that the petition is dismissed on the merits in accordance with the above decision.

"The repeal of a statute or part thereof shall not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected." (General Construction Law § 93.)

"Although postenactment statements of the Governor may be examined in an analysis of legislative intent and statutory purpose (see, e.g., Crane Neck Assn. v New York City/Long Is. County Servs. Group, 61 NY2d 154 [relying upon gubernatorial memoranda]; see also, Killenbeck, A Matter of Mere Approval? The Role of the President in the Creation of Legislative History, 48 Ark L Rev 239), such statements suffer from the same infirmities as those made during floor debates by legislators. Here, the reports and memoranda simply indicate that various people had various views." (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d at 586-587.)