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Supreme Court, Appellate Division, First Department, New York.

IN RE: PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., Petitioner–Appellant, v. Bill De BLASIO, etc., et al., Respondents–Respondents. Reporters Committee for Freedom of the Press, Hearst Corporation, The Associated Press, Inc., Buzzfeed, Inc., Cable News Network, Inc., The Center for Investigative Reporting, Daily News, LP, Dow Jones & Company, Inc., Gannett Company, Inc., Gizmodo Media Group, LLC, New York Public Radio, The New York Times Company, NYP Holdings, Inc., and Spectrum News NY1, Amici Curiae.


Decided: February 19, 2019

Richter, J.P., Manzanet–Daniels, Tom, Gesmer, Kern, JJ. Kasowitz Benson Torres LLP, Pelham (Michael J. Bowe of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Aaron M. Bloom of counsel), for respondents. Ballard Spahr LLP, New York (Thomas B. Sullivan of counsel), for amici curiae.

Orders, Supreme Court, New York County (Shlomo Hagler, J.), entered May 7, 2018, which denied the petition and granted respondents' cross motion to dismiss the petition and complaint in this hybrid CPLR article 78 proceeding to challenge the City's public release of police department body-worn-camera footage without a court order or the relevant officers' consent, pursuant to Civil Rights Law § 50–a, and denied petitioner's motion for a preliminary injunction, unanimously affirmed, without costs.

We affirm the denial of the petition and dismissal of the proceeding on grounds different from those of Supreme Court.  The court held that petitioner could not maintain this hybrid action because there is no private right of action under Civil Rights Law § 50–a.  We conclude that the fact that the statute does not provide a private right of action does not preclude review of petitioner's request for injunctive relief in an article 78 proceeding, because the statute creates protected rights (for police officers) and does not explicitly prohibit a private right of action or otherwise manifest a clear legislative intent to negate review (see Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 10–11, 377 N.Y.S.2d 451, 339 N.E.2d 865 [1975];  Delgado v. New York City Hous. Auth., 66 A.D.3d 607, 608, 888 N.Y.S.2d 19 [1st Dept. 2009];  see also Matter of East Ramapo Cent. Sch. Dist. v. King, 29 N.Y.3d 938, 51 N.Y.S.3d 2, 73 N.E.3d 342 [2017];  Patrolmen's Benevolent Assn. of the City of New York, Inc. v. De Blasio, 2015 N.Y. Slip Op. 32829[U], 2018 WL 3036350 [Sup. Ct., N.Y. County 2015] ).

Nevertheless, the petition must be denied.  In order to determine whether something is a “personnel record” under Civil Rights Law § 50–a, the “threshold criterion” is whether the documents (or a summary of the documents) are “of significance to a superior in considering continued employment or promotion” (Matter of Luongo v. Records Access Officer, Civilian Complaint Review Bd., 150 A.D.3d 13, 19, 51 N.Y.S.3d 46 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2017 WL 6459568 [2017], quoting Matter of Prisoners' Legal Servs. of N.Y. v. New York State Dept. of Correctional Servs., 73 N.Y.2d 26, 32, 538 N.Y.S.2d 190, 535 N.E.2d 243 [1988] ).

The Court of Appeals has further clarified that whether a document “containing personal, employment-related information about a public employee,” that is under the control of the agency, and “relied upon in evaluating the employee's performance,” is covered by Civil Rights Law § 50–a “depends upon its nature and use in evaluating an officer's performance” (Matter of Prisoners' Legal Servs., 73 N.Y.2d at 32, 538 N.Y.S.2d 190, 535 N.E.2d 243).  Moreover, the Court of Appeals has held that, in the context of a FOIL disclosure of an officer's personnel records, preventing such disclosure requires more than merely demonstrating that the document “may be used” to evaluate performance (id. at 31, 538 N.Y.S.2d 190, 535 N.E.2d 243).

Petitioner argues that the body-worn-camera was designed in part for performance evaluation purposes and is clearly “of significance” to superiors in considering employment or promotion.  Petitioner also suggests that a finding that body-worn camera footage is not a personnel record would result in an unprecedented invasion of privacy.

While we recognize petitioner's valid concerns about invasion of privacy and threats to the safety of police officers, we are tasked with considering the record's general “nature and use,” and not solely whether it may be contemplated for use in a performance evaluation.  Otherwise, that could sweep into the purview of § 50–a many police records that are an expected or required part of investigations or performance evaluations, such as arrest reports, stop reports, summonses, and accident reports, which clearly are not in the nature of personnel records so as to be covered by § 50–a.

We find that given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of § 50–a (see Matter of Prisoners' Legal Servs. of N.Y. v. New York State Dept. of Correctional Servs., 73 N.Y.2d 26, 32, 538 N.Y.S.2d 190, 535 N.E.2d 243 [1988] ).  The purpose of body-worn-camera footage is for use in the service of other key objectives of the program, such as transparency, accountability, and public trust-building.

Although the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with any pending disciplinary charges or promotional processes.  New York Civil Liberties Union v. New York City Police Department, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2018 N.Y. Slip Op. 08423, 2018 WL 6492733 [2018], which involved disciplinary matters, does not constrain this analysis.  The footage, here, rather, is more akin to arrest or stop reports, and not records primarily generated for disciplinary and promotional purposes.  To hold otherwise would defeat the purpose of the body-worn-camera program to promote increased transparency and public accountability.

We have considered petitioner's remaining arguments and find them unavailing.