Luongo v. Records Access Officer

OPINION OF THE COURT

The issues before us stem from the extensively publicized arrest and death of Eric Garner on July 17, 2014. Intervenor Police Officer Daniel Pantaleo was depicted in a bystander video applying a choke hold to Mr. Garner during the incident. An investigation followed, and on December 2, 2014, a grand jury declined to indict Officer Pantaleo in connection with Mr. Garner’s death.

Petitioner submitted a Freedom of Information Law (FOIL) letter request to respondent Records Access Officer, Civilian Complaint Review Board (CCRB), dated December 18, 2014, seeking eight categories of records concerning Officer Pantaleo, dating from 2004 to the date of Mr. Garner’s death. Petitioner sought: (1) the number of complaints filed against Officer Pantaleo; (2) the number of allegations contained within each complaint; (3) the outcome of CCRB’s investigation of each allegation; (4) any prosecution by CCRB in response to such finding; (5) the outcome of any prosecution by CCRB; (6) any charges and specifications filed by the New York City Police Department’s (NYPD) Department Advocate Office; (7) the outcome of any Department Advocate Office proceedings; and (8) any other agency actions in response to the above requests.

This CPLR article 78 proceeding was commenced on February 17, 2015, and sought an order directing the CCRB to produce “a summary of the number of allegations, complaints and outcomes brought against” Officer Pantaleo. Much of petitioner’s broader initial request was thus abandoned. During the proceedings, petitioner further narrowed its FOIL request, seeking only information as to “whether the CCRB substantiated complaints against Officer Pantaleo and, if so, whether there were any related administrative proceedings, and those outcomes, if any.” Officer Pantaleo applied for and was granted intervenor status as a party respondent. His opposition papers alleged, among other things, that even the requested summary of the CCRB records was exempt from disclosure because it would endanger his life and the lives of his family members. In support, he referenced online, unsubstantiated reports of alleged misconduct on his part that resulted in the arrest of a Michigan man in February 2015 for posting Facebook death threats against him. Officer Pantaleo also stated that the NYPD’s Threat Assessment Unit had assigned police officers to watch over him and his family 24 hours a day, 7 days a week, and implemented other security measures as well. He also agreed with the CCRB that the requested documents constituted “personnel records” within the meaning of Civil Rights Law § 50-a (1) and were therefore exempt from disclosure.

Supreme Court found, without conducting an in camera review of the requested information, that the summary sought by petitioners did not constitute a “personnel record” exempted from disclosure by Civil Rights Law § 50-a because the CCRB is “a city agency independent of the NYPD” (Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., 49 Misc 3d 708 , 716 [2015]). The court further found that even if the summary constituted a “personnel record,” nondisclosure

At the conclusion of the hearing, the Deputy Commissioner or Assistant Deputy Commissioner prepares a report and recommendation containing findings of fact and conclusions of law. If the NYPD Commissioner approves it, the report and recommendation is so marked and a separate document is prepared, containing the final disposition and penalty to be imposed (see 38 RCNY 15-08 [a]). These documents are thereafter placed in the officer’s personnel file.

FOIL (Public Officers Law §§ 84-90) presumes that all agency records are available for public inspection and copying, unless an exemption expressly provides otherwise (see Public Officers Law §§ 84, 87 [2]; Matter of Data Tree, LLC v Romaine, 9 NY3d 454 , 462 [2007]). An agency may withhold public documents requested pursuant to FOIL only if it “articulate [s] particularized and specific justification for not disclosing requested documents” (Ma tter of Gould v New York City Police Dept., 89 NY2d 267 , 275 [1996] [internal quotation marks omitted]). The agency bears the burden of establishing that the requested material falls within one of the narrow exemptions to the general mandate of open access to government documents (Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652 , 657 [2012]; Data Tree, 9 NY3d at 462 ).

FOIL further provides that agencies may deny access to records or portions thereof that are specifically exempted from disclosure by state or federal statute (Public Officers Law § 87 [2] [a]). Civil Rights Law § 50-a (1) contains one of those statutory exemptions. It provides, in pertinent part, that “[a] 11 personnel records used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.”

Statutes should be interpreted in a manner designed to effectuate the legislature’s intent, construing clear and unambiguous statutory language “so as to give effect to the plain meaning of the words used” (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205 , 208 [1976]; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98 , 106-107 [1997]). In that regard, the text of the statute remains the best evidence of the legislature’s intent (Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54 , 58 [2004]).

We are not without guidance with respect to the kinds of documents that constitute “personnel records.” The Court of Appeals has spoken several times on this issue, and we now turn to an analysis of the relevant cases.

There is “no definition or other language explaining or qualifying what is covered by the term ‘personnel records’ except that such records must be under the control of the particular agency or department and be used to evaluate performance toward continued employment or promotion” (Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26 , 31 [1988]). Significantly, it is the document’s “nature and its use in evaluating an officer’s performance—not its physical location or its particular custodian” that determines whether a particular document constitutes a personnel record (id. at 32). The threshold criterion, therefore, is whether the document is “of significance to a superior in considering continued employment or promotion” (id. at 32). The analysis of Civil Rights Law § 50-a and its legislative history in Matter of Daily Gazette Co. v City of Schenectady ( 93 NY2d 145 [1999], supra) is highly instructive. The petitioners in Gazette were two newspapers that sought “records regarding disciplinary action against 18 officers” of the Schenectady Police Department arising out of allegations that they were involved in throwing eggs at a civilian vehicle while off-duty (id. at 152). The petition alleged that the officers had disciplinary sanctions confidentially imposed upon them as a result of that incident (id.).

The Court rejected the petitioners’ argument that the statutory exemption should be narrowly construed to apply only to

In its review of the statute’s legislative history, the Court noted that section 50-a “was first enacted into law (L 1976, ch 413) some two years after passage of the original FOIL legislation (L 1974, ch 578),” by which time the legislature “was well aware of the use of FOIL to obtain such records,” and that the “statute was designed to prevent abusive exploitation of personally damaging information contained in officers’ personnel records” (id. at 154). While acknowledging that such abuse would most often occur in the context of a criminal defense attorney’s FOIL request for an officer’s records to use on cross-examination of the officer, the Court, citing memoranda from the legislative record, nevertheless refused to limit nondisclosure to litigation, noting that the legislation “was sponsored and passed as a safeguard against potential harassment of officers through unlimited access to information contained in personnel files” (id. at 155).

Since the statute’s enactment, each Judicial Department has had the occasion to address the issue of whether civilian complaints constitute “personnel records” within the meaning of Civil Rights Law § 50-a (1), and each has held that information similar to that sought here falls squarely within the statutory exemption. For example, in Matter of Gannett Co. v James ( 86 AD2d 744 , 745 [4th Dept 1982], lv denied 56 NY2d 502 [1982]), the Court determined that records of complaints filed with the Internal Affairs Divisions of several police departments and documents reflecting the final disposition of hearings held with respect thereto “[c]learly . . . fall within the statutory exemption.” The Court also noted that “the confiden

The Court of Appeals modified that decision ( 15 NY3d 759 [2010]). The Court held that the City of Albany had failed to meet its burden of demonstrating that the “gun tags” were personnel records as envisioned by Civil Rights Law § 50-a (1) in that there was no evidence that “the documents were ‘used to evaluate performance toward continued employment or promotion,’ as required by that statute” (id. at 761). The Court of Appeals held that “the unredacted gun tags do not fall squarely within a statutory exemption and are subject to disclosure” under FOIL (id.).

Here, by contrast, there is no question that the summary sought involves one officer and are part and parcel of his personnel file. There is also no question that the records sought are “used to evaluate performance toward continued employment or promotion,” as required by the statute. Unlike those at issue in Capital Newspapers, the requested documents here do “fall squarely within a statutory exemption” of Civil Rights Law § 50-a (1) and are thus not subject to disclosure, under applicable precedent.

CCRB findings and recommendations are clearly of significance to superiors in evaluating police officers’ performance. As noted, all complaints filed with the CCRB, regardless of the

custodian. Indeed, it has been held that applicability of the statute ‘cannot be determined simply on the basis of where the information is stored’ ” (Prisoners' Legal Servs., 73 NY2d at 32 , quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92 , 95 [3d Dept 1985], affd 67 NY2d 562 [1986]).

To hold otherwise would be to defeat the clear legislative purpose of the statute. In light of its not insignificant role in the police disciplinary process, the fact that CCRB is a separate agency from NYPD is of no moment, and its records are subject to the constraints of Civil Rights Law § 50-a (see Prisoners' Legal Servs., 73 NY2d at 32 ; Telesford v Patterson, 27 AD3d 328 [1st Dept 2006]).

Respondents’ prior disclosure of records concerning other officers cannot act as an estoppel against objections to releasing the records requested herein (see Matter of New York Civ. Liberties Union v New York City Police Dept., 148 AD3d 642 [1st Dept 2017] [decided herewith], citing Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436 , 449 [1983]; Matter of Mazzone v New York State Dept. of Transp., 95 AD3d 1423 , 1424-1425 [3d Dept 2012]). Nor does the fact that the NYPD has released, in other matters on prior occasions, results of disciplinary actions act as a waiver. As stated in the context of other statutory exemptions: “Nothing in the Freedom of Information Law . . . restricts the right of the agency if it so chooses to grant access to records within any of the statutory exceptions, with or without deletion of identifying details” (Matter of Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399 , 404 [1982]; see also Matter of New York Civ. Liberties Union v New York City Police Dept., 148 AD3d 642 [1st Dept 2017]).

Respondents contend that the production of the requested summary has a sufficient potential for abusive use against Officer Pantaleo, and that is an additional reason to support CCRB’s decision to withhold disclosure.

Where a document qualifies as a “personnel record,” “nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a—to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer” (Daily Gazette, 93 NY2d at 157-158 ). Additionally, Civil Rights Law § 50-a also protects documents outside of litigation,

Thus, an “agency or other party opposing disclosure of officers’ personnel records carries the burden of demonstrating that the requested information falls squarely within the exemption” by demonstrating “a substantial and realistic potential of the requested material for the abusive use against the officer” (Daily Gazette, 93 NY2d at 158-159 ).

Petitioner argues that there can be no potential for abusive use of these documents, since there has been no showing of any causal connection between leaks of CCRB documents that have already occurred and the death threat against Officer Pantaleo. This argument misses the mark.

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” (Matter of Daily Gazette, 93 NY2d at 158 ; see Prisoners’ Legal Servs., 73 NY2d at 31 ).

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).

“Public Officers Law § 87 (2) (f) permits an agency to deny access to records, that, if disclosed, would endanger the life or safety of any person. The agency in question need only demonstrate 'a possibility of endanger [ment]’ in order to invoke this exemption” (Matter of Bellamy v New York City Police Dept., 87 AD3d 874 , 875 [1st Dept 2011], quoting Matter of Connolly v New York Guard, 175 AD2d 372 , 373 [3d Dept 1991], affd 20 NY3d 1028 [2013]; see Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494 , 499 [3d Dept 1996], supra). The respondent need not demonstrate the existence of a specific threat or intimidation, but rather a show

Here, in light of the widespread notoriety of Mr. Garner’s death and Officer Pantaleo’s role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD’s Threat Assessment Unit to order around-the-clock police protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo’s safety nonetheless demonstrate that disclosure carries a “substantial and realistic potential” for harm, particularly in the form of “harassment and reprisals,” and that nondisclosure of the requested records under Civil Rights Law § 50-a is warranted (see Daily Gazette, 93 NY2d at 157, 159 ).

The points raised in the various amici briefs can be summarized, in the main, as raising various public policy concerns. However, with all due respect to the seriousness of those concerns, we take no position on whether the statute should be amended to address those concerns. We are bound to apply the law as it exists, and as interpreted by controlling Court of Appeals precedents (Matter of New York Civil Liberties Union v New York City Police Dept., 148 AD3d 642 [1st Dept 2017]). Such policy and public interest arguments have been found to be inconsistent with the legislative history of Civil Rights Law § 50-a (see Daily Gazette, 93 NY2d at 154-155 ). Petitioner’s remedies, under our tripartite system of government, rest with the legislature as the policy-making branch of government, not the courts, which are tasked with interpretation of the laws.

We have considered petitioner’s remaining arguments and those of the amici curiae and find them unavailing.

Accordingly, the order and judgment (one paper), of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 27, 2015, directing respondent to produce to petitioner, pursuant to the Freedom of Information Law, a summary of C CRB’s records indicating (a) the number of substantiated complaints brought against intervenor before the July 17, 2014 death of Eric Garner and (b) any CCRB recommendations made to the Police Department based on such complaints, should be reversed, on the law, without costs, the judgment

Acosta, Moskowitz, Kapnick and Kahn, JJ., concur.

Order and judgment (one paper), Supreme Court, New York County, entered July 27, 2015, reversed, on the law, without costs, the judgment vacated, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.