Matter of Puig - Police Misconduct Records Released

New York's Freedom of Information Law (FOIL) allows access to police misconduct records which, as discussed in MATTER OF PUIG v. City of Middletown, 2021 N.Y. Slip Op 21096 (NY: Supreme Court 2021), were contemplated when lawmakers decided that the records previously protected by Civil Rights Law Section 50-a must be released to better hold police accountable to the public they serve.

The New York State Legislature recently repealed Section 50-a of the Civil Rights Law, which had prevented the disclosure of police disciplinary records even in cases involving known misconduct. The repeal confirmed that the untoward expansion of Section 50-a since its adoption in 1976 was an impediment to FOIL’s public policy goal of accountability through open and transparent government.

In Uniformed Fire Officers Association v. DeBlasio, 20-2789(L)(2d Cir. February 17, 2021) a summary order issued on February 17, 2021, the police and firefighters union opposed this legislative repeal of Civil Rights Law § 50-a and the litigation would scale back the scope of the new law, and, to that end, numerous amicus parties filed briefs in this case, including law enforcement entities and civil rights groups. The police in that case argued that revealing disciplinary records, even in cases where the police were exonerated or where the complaints were deemed unfounded or unsubstantiated, would cause them irreparable harm. The District Court there rejected these arguments and the Second Circuit affirmed, holding that “to the extent that this claim implicates records that must be disclosed under FOIL, the NYPD cannot bargain away its disclosure obligations.” Id. at P. 9 (citing Matter of M. Farbman & Sons v. N.Y.C. Health 17 & Hosps. Corp., 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 71 (1984).

The concerns over police officer privacy and FOIL were also addressed in Uniformed Fire Officers Association v. DeBlasio, 20-2789(L)(2d Cir. February 17, 2021) which held that “the City appears to still recognize those specific FOIL exemptions that are designed to protect against unwarranted invasions of personal privacy or endangering a person’s safety.” Id. at P. 15 (citing New York Public Officers Law § 87(2)(b), (f)). The arguments raised by the police in Uniformed Fire Officers Association v. DeBlasio, 20-2789(L)(2d Cir. February 17, 2021) were rejected by the United States District Court and affirmed by the Second Circuit which specifically found that the police are not entitled to enjoin the decision to release the records to the public. Indeed, the Respondents “cannot bargain away its FOIL obligations.” Id. at P. 17.

Here, the City of Middletown Police, a Police Department local to Mr. Puig, is a government agency subject to FOIL and was therefore obligated to provide full and unrestricted access to any of its records set forth in a FOIL request, unless the Agency can justify nondisclosure by demonstrating entitlement to a specific exemption in the statute. Capital Newspapers Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252 (1987) (“[t]he agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access”).

Civil Rights Law Section 50-A was repealed and is no longer a valid exemption. The amendments to FOIL expressly subject “law enforcement disciplinary records,” which are defined broadly to include “any record created in furtherance of a law enforcement disciplinary proceeding,” to FOIL’s public access mandates. Public Officers Law §§ 86(6), 87(4-a), 87(4-b). Accordingly, law enforcement disciplinary records that once could only be released pursuant to court order or the written consent of the individual officer are now subject to presumptive disclosure under FOIL.

Police misconduct records must be disclosed unless the agency in possession of such records can satisfy the heavy burden of demonstrating that the requested disciplinary records fall squarely within a FOIL exemption by articulating a particularized and specific justification for denying access. Moreover, the recent amendments to FOIL limit mandatory redactions of such records to personal medical information, home addresses, personal telephone numbers, personal email addresses, social security numbers, or use of certain employee assistance programs and services. Public Officers Law § 87(4)(a).

As stated above, the repeal of Civil Rights Law § 50-a makes all “law enforcement disciplinary records,” including those that contain uncharged or unsubstantiated allegations of misconduct, subject to presumptive disclosure under FOIL. The New York Supreme Court’s recent decision in Schenectady Police Benevolent Ass’n v. City of Schenectady, 2020 NY Slip Op 34346(U) (Schenectady Cty. Sup. Ct. December 29, 2020), is instructive on this point and binding absent other authority.

Another dispositive case is Schenectady Police Benevolent Ass’n v. City of Schenectady involved FOIL requests by a journalist with the Times Union (Albany) and the New York Civil Liberties Union (“NYCLU”) for a police officer’s personnel records following an incident in which the police officer subdued a young Indian man with the use of physical force. Id. at *4. Issuance of the FOIL requests prompted the Schenectady Police Benevolent Association (“PBA”) to institute an Article 78 proceeding (a so-called “reverse FOIL action”) to prevent the City of Schenectady, its Public Safety Commissioner, and its Police Department from producing unsubstantiated charges or mere allegations in response to the FOIL requests. Id.

Notably, the Attorney Alex Smith as corporate counsel received a litigation hold notice from the undersigned demanding the preservation of these records made over a year ago and had all the opportunity in the world to join the above court matter or start another one on behalf of the Respondents here and, perhaps, others similarly situated.

The court in Schenectady Police Benevolent Ass’n v. City of Schenectady—relying on the Court of Appeals’ directive that “it is not the veracity of the allegations but, instead, whether they relate to the discharge of public duties which guides the analysis”—rejected the PBA’s arguments that unsubstantiated charges should be exempt from public access because the disclosure of such records would constitute an unwarranted invasion of personal privacy. Id. at *12-*13 (citing Matter of New York Times Co. v. City of N.Y. Fire Dept., 4 N.Y.3d 477, 482 (2005)). As the court explained, to conclude otherwise would render the Legislature’s repeal of Section 50-a “utterly meaningless:”

[R]egardless whether unsubstantiated or unfounded or exonerated or dismissed, or regardless of whether not yet fully determined, or regardless of whether founded but without discipline imposed, the respondents herein cannot determine to deny the sought disclosure. A finding that [the police officer’s] personnel record, or any portion thereof, be withheld or redacted on the basis that its release would constitute an unwarranted invasion of personal privacy, cannot be realized by petitioners, as to do so would render the legislature's repeal of [Section 50-a] utterly meaningless simply by the respondents theorizing that the record (or any portion thereof) is, in their opinion, “private.” Given that an easy ability to render the new statutory scheme meaningless could not possibly have been [ ] intended by the legislature, this Court is constrained to deny the petition and complaint in their entirety.

Id. at *17-*18 (external quotation marks omitted).

This case and the Matter of Puig means that New York Public Officers, New York Police Departments, can no longer hide these records under a shroud of secrecy or the guise of personal privacy.

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA).

Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for a flat-fee price quote. We work on a sliding scale, depending on the amount of the request and whether the request is in the public interest.

This office served as of counsel to Mr. Puig, the Law Offices of Ken Puig, a gentleman "With over 22 years of experience, attorney Kenneth Puig has the skills to aggressively represent you in court and finding the most cost-effective solution to your legal issues." With this case, Mr. Puig changed the law and increased accountability.