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IN RE: the Petition of NEW YORK CIVIL LIBERTIES UNION, Petitioner, v. CITY OF SYRACUSE and Syracuse Police Department, Respondents.
On March 18, 2021, Petitioner New York Civil Liberties Union (“NYCLU”) filed a Petition (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 (“Public O.”) § 84 et seq., commonly known as the Freedom of Information Law (“FOIL”), and are 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 (the “FOIL Request”, NYSCEF Doc. No. 5). 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” (the “Acknowledgment”, NYSCEF Doc. No. 6). In November 2020, the Parties met concerning the FOIL Request, whereat Respondent allegedly committed to a “rolling production of documents partially responsive to the Request” (see Petition, NYSCEF Doc. No. 1, ¶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 Petition, NYSCEF Doc. No. 1, ¶3). Petitioner alleges Respondents’ partial denial contravenes the plain language of the recent repeal of Civil Rights Law (“CRL”) § 50-a (ibid at ¶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 O. § 87(2)” (Gould v. New York City Police Dep't, 89 N.Y.2d 267, 274–75, 653 N.Y.S.2d 54, 675 N.E.2d 808 ). Petitioner asserts that the repeal of CRL § 50-a “commands the disclosure of all disciplinary records, regardless of status or disposition” (see Memorandum of Law, NYSCEF Doc. No. 3, p. 5). Petitioner alleges that the Legislature considered and rejected a narrower version of the CRL § 50-a repeal which would have limited the release of documents to substantiated claims (see S.4213). Petitioner notes that Public O. § 89 was also amended to create limited disclosure shields for certain personal information relative to police officers (see e.g. Public O. §§ 89(2-b) and 89(2-c)).
Petitioner argues that Respondents’ interpretation of Public O. § 87(2)(b) would nullify the repeal of CRL § 50-a. Petitioner points to comments made during the debate of the bills it was proffered that the intent was specifically to look at the process, not just the results, of disciplinary proceedings (see NY Senate, Floor Debate, 243rd NY Leg., Reg. Sess. 1805-06 (June 9, 2020)). Petitioner further alleges that other courts have rejected Respondents’ interpretation (see Schenectady PBA v. City of Schenectady, 2020 WL 7978093, at 4, 2020 N.Y Misc. LEXIS 10947, at 12-13 [Sup. Ct. Schenectady Cty. 2020].; see also Buffalo Police Benevolent Ass'n., Inc. v. Brown, 69 Misc.3d 998, 134 N.Y.S.3d 150, 154 [Sup. Ct. Erie Cty. 2020]). Petitioner urges the Court to grant the relief sought.
Petitioner further argues it is entitled to attorneys’ fees. Petitioner notes the Court:
“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 O. § 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.
Respondents answered and generally denied (see Answer, NYSCEF Doc. No. 36). 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 CRL § 50-a did not result in a change of FOIL resulting in police officers being treated less favorably than other public employees (see Affirmation, NYSCEF Doc. No. 28, ¶¶3-4). Respondents note the repeal did not change, let alone mention Public O. § 87(2)(b), the personal privacy exemption (ibid at ¶5, see also L 2020, ch. 96). Respondents cite numerous cases where courts determined that Public O. § 87(2)(b) required unsubstantiated records to be shielded (see Western Suffolk Bd. of Co-op. Educ. Servs. v. Bay Shore Union, 250 A.D.2d 772, 773, 672 N.Y.S.2d 776 [Second Dept. 1998]; LaRocca v. Bd. of Educ., 220 A.D.2d 424, 427, 632 N.Y.S.2d 576 [Second Dept. 1995]; Santomero v. Board of Educ., 2009 WL 6860644 [Sup. Ct. Westchester Cty. 2009]; Herald Company v. School District of City of Syracuse, 104 Misc. 2d 1041, 430 N.Y.S.2d 460 [Sup. Ct. Onondaga Cty. 1980]). Respondents also point to an Advisory Opinion (“AO”) from the Committee on Open Government which similarly found Public O. § 87(2)(b) affords public employees, including police officers, certain privacy protections in regards to “unsubstantiated and unfounded complaints” (see AO 19775, NYSCEF Doc. No. 31). Respondents also point to the floor debate of the repeal of CRL § 50-a which they claim supports their position (see Assembly Floor Debate, June 9, 2020, NYSCEF Doc. No. 29, pp. 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 AO 17985, NYSCEF Doc. No. 32). Respondents urge the Court grant deference to the Committee on Open Government's interpretation of the relevant statutes (see Forsyth v. City of Rochester, 185 A.D.3d 1499, 129 N.Y.S.3d 220 [Fourth Dept. 2020]). Respondents proceed to distinguish the Petitioner's proffered cases from the facts at issue.
Respondents also argue that Petition failed to preserve the issue as they did not take an administrative appeal (see Ayuso v. Graham, 177 A.D.3d 1389, 1390, 114 N.Y.S.3d 547 [Fourth Dept. 2019])). Respondents allege that Petitioner only appeals two issues: a) whether the SPD's response was deficient because it did not fully articulate the reasons for the denial; and b) whether the repeal of CRL § 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 O. § 87(2)(b), outside of the Petitioner's argument concerning the repeal of CRL § 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 enforcement disciplinary records if those records relate to complaints that were not substantiated or remain open” (Memorandum of Law, NYSCEF Doc. No. 40, p. 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 O. §§ 87(2)(b) and 89(2) (ibid at p. 2). Petitioner relies on opinions from courts which are not binding upon this Court to substantiate their opinion (see e.g. People v. Herrera, No. CR-004539-20NA, 2021 WL 1247418, at *5 (N.Y. Dist. Ct. Apr. 5, 2021)). Petitioner argues that the privacy exceptions of Public O. § 87 do not exist in a vacuum but must be read in concert with Public O. § 89. Petitioner further argues that Public O. § 89 defines the scope of the privacy exception (Memorandum of Law, NYSCEF Doc. No. 40, p. 6).
Petitioner further argues that the cases cited by Respondents are irrelevant to the matter at hand and “misdirection” (ibid at. p. 7). Petitioner argues that Herald Co. v. School Dist. of City of Syracuse was decided based upon the exceptions in Public O. § 87(2)(a) and (g), not Public O. § 87(2)(b) (ibid at p. 8; see also Herald Co. at 1045-1047, 430 N.Y.S.2d 460). 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, 430 N.Y.S.2d 460). Petitioner also argues that the legislative intent of the repeal of CRL § 50-a was to open all records to public inspection, regardless of whether the claims were substantiated (see Schenectady PBA, supra). 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 O. § 89.
Respondents argued that the information protected under Public O. §§ 89(2-b), and 89(2-c) is the minimum an agency should redact, not a maximum. A point Petitioner later conceded: that Public O. § 89(2) was not an exhaustive list. Respondent 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 O. § 87, such as unsubstantiated claims against police officers.
Respondent analogized the release of unsubstantiated claims against police officers to the attorney and judicial grievance processes. Respondent noted that in both those instances, unsubstantiated attorney and judicial grievances are not publicly released. Respondent argues 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.
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 Petition, NYSCEF Doc. No. 1, p. 10). The subject matter of the Petition is focused on Respondents’ November 17, 2020 denial letter (see Petition, NYSCEF Doc. No. 1, ¶3; see also Denial Letter, NYSCEF Doc. No. 7; see also Memorandum of Law, NYSCEF Doc. No. 40, p. 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 collectively “unsubstantiated” matters. Petitioner alleges that the repeal of CRL § 50-a means that both categories of documents are now open for public review.
CRL § 50-a allowed agencies to deny FOIL requests which sought personnel records of, inter alia, police officers (see generally NYCLU v. New York City Police Dept., 32 N.Y.3d 556, 94 N.Y.S.3d 185, 118 N.E.3d 847 ). “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 A.D.3d 1369, 1370, 995 N.Y.S.2d 340 [Third Dept. 2014]). CRL § 50-a was repealed effective June 12, 2020 (see L 2020, ch. 96). In the same law, the Legislature also defined “law enforcement disciplinary records” (see Public O. § 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 O. §§ 87(4-a), 87(4-b), 89(2-b), and 89(2-c)). The repeal of CRL § 50-a made no other changes (see L 2020, ch. 96).
Public O. § 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” (Public O. § 87(2)(b)). As noted by Respondents, the disclosure of unsubstantiated complaints have been considered exempt as an invasion of personal privacy (see e.g. LaRocca v. Board of Educ., 220 A.D.2d 424, 427, 632 N.Y.S.2d 576 [Second Dept. 1995]). This view is also held by the Committee on Open Government (see AO 19775, NYSCEF Doc. No. 31). 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, emphasis in original).
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 (“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, 134 N.Y.S.3d 150 [Sup. Ct. Erie Cty. 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 § 87(2)(b)” (Buffalo Police Benevolent Assn. at 1004-1005, 134 N.Y.S.3d 150).
Buffalo Police Benevolent Assn. does not purport to stand for the proposition that records must be released.
In Schenectady PBA, the court noted the repeal of CRL 50-a resulting in “access to law enforcement personnel records, including disciplinary history is now governed by FOIL alone” (Schenectady PBA at 10). However, our sister court in Schenectady PBA 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” (Schenectady PBA at 12). The court in Schenectady PBA 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 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 a manner that reflects that intention” (Schenectady PBA 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 p. 397, citing Wheeler v. Smith, 50 U.S. 55, 78, ––– S.Ct. ––––, 13 L.Ed. 44 , and Josef Kohler, “Judicial Interpretation of Enacted Law,” in 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 CRL § 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 and 4). What the law did not provide for was altering previously existing privacy considerations. The release of unsubstantiated claims have been previously found to be prohibited by Public O. § 87(2) as an unwarranted invasion of privacy (see Matter of LaRocca supra). When considering the repeal of CRL § 50-a through the lens of previous caselaw, the Court has no choice but to deny the request for an order releasing all unsubstantiated discipline records.
The Court further agrees with respondent in its analogy with attorney and judicial grievances. For example, Judiciary Law § 90(1) 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 Nichols v. Gamso, 35 N.Y.2d 35, 38, 358 N.Y.S.2d 712, 315 N.E.2d 770 (1974) stated: “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 CRL § 50-a does not require documents related to unsubstantiated claims against police officers to be released. Further, the public interest in the release of unsubstantiated claims do 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 O. § 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 O. § 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 caselaw (see Public O. § 89(4)(c)). The foregoing constitutes the decision of the Court.
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 hereby GRANTED; and it is further
ORDERED, that the Petition is DENIED in its entirety.
Gerard J. Neri, J.
Response sent, thank you
Docket No: 002602/2021
Decided: May 05, 2021
Court: Supreme Court, Onondaga County, New York.
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