Capital Newspapers Div. of Hearst Corp. v. Burns

• Citation: 67 N.Y.2d 562,505 N.Y.S.2d 576,496 N.E.2d 665
• Parties: , 496 N.E.2d 665, 13 Media L. Rep. 2237 In the Matter of CAPITAL NEWSPAPERS DIVISION OF the HEARST CORPORATION et al., Respondents, v. T. Garry BURNS, as Records Access Officer for the Albany City Police Department, et al., Respondents, and James Tuffey, Intervenor-Appellant.
• Decision Date: 03 July 1986
• Court: New York Court of Appeals Court of Appeals

Page 576

505 N.Y.S.2d 576

67 N.Y.2d 562, 496 N.E.2d 665, 13

Media L. Rep. 2237

In the Matter of CAPITAL NEWSPAPERS DIVISION OF the HEARST CORPORATION et al., Respondents, v. T. Garry BURNS, as Records Access Officer for the Albany City Police Department, et al., Respondents and James Tuffey, Intervenor-Appellant.

Court of Appeals of New York.

July 3, 1986.

Mark T. Walsh, Jr., Albany, for intervenor-appellant.

Peter L. Danziger, Salvatore D. Ferlazzo, New York City and Thomas F. Gleason, Albany, for Capital Newspapers Div. of the Hearst Corp. and another, respondents.

Robert Abrams, Atty. Gen. (Frank K. Walsh, Robert Hermann and Peter H. Schiff, Albany of counsel), for Division of State Police and another, amici curiae.

OPINION OF THE COURT

SIMONS, Judge.

Petitioner Cipriano is a newspaper reporter. In the course of investigating administrative and fiscal procedures in the City of Albany, he was informed that certain members of the Albany police force were abusing the sick leave privileges accorded them by the collective bargaining agreement their union had negotiated with the city. He attempted to verify this information by a series of requests under the Freedom of Information Law (FOIL; Public Officers Law art. 6) through which he sought access to police records containing "statistical or factual tabulations of data of the number of days and dates" on which certain named officers were absent from their scheduled employment. One of the requests concerned the records of Officer James Tuffey who was president of the local police officers' union. Cipriano's first request, for records of Tuffey's absences during January 1983, was granted by the City Hall Records Access Officer and he was informed that Tuffey had not taken any sick time during January 1983. All Cipriano's subsequent requests were denied.

This proceeding challenges only one of those denials, that which denied Cipriano's request for records containing statistical or factual tabulations of sick time taken by Officer Tuffey during the month of February 1983. The City Hall Records Access Officer denied access to those records, contending that disclosure would constitute an unwarranted invasion of personal privacy (see, Public Officers Law § 87[2][b]; § 89[2][b] ). On administrative appeal, however, Cipriano's request was denied because the records were confidential and, absent the officer's consent or a court order, exempt from disclosure by Civil Rights Law § 50-a.

Petitioners, Cipriano and his employer, then instituted this article 78 proceeding to compel the police department to release the record of Tuffey's February sick time. Officer Tuffey moved to intervene in the proceeding and Special Term granted his request. The court thereafter examined in camera all records falling within the description of petitioners' FOIL request and ruled that the "Lost Time Report" was not a personnel record within the meaning of Civil Rights Law § 50-a and that its release did not constitute an unwarranted invasion of personal privacy. Accordingly, it ordered release of the "Lost Time Report" in redacted form showing Tuffey's absences from scheduled employment during February 1983. On appeal by the intervenor, the Appellate Division affirmed, 109 A.D.2d 92, 490 N.Y.S.2d 651, but on different grounds. It found the information part of intervenor's personnel record, but held, nonetheless, that the document should be released because Civil Rights Law § 50-a did not provide an exemption for FOIL requests, but rather was only intended to prevent a litigant in a civil or criminal action from obtaining documents in a police officer's file that are not directly related to that action. The Appellate Division also agreed with Special Term that release of the "Lost Time Report" would not be an unwarranted invasion of personal privacy.

There should be an affirmance. The redacted "Lost Time Report" is not exempt from disclosure by Civil Rights Law § 50-a and intervenor has failed to show that its disclosure would constitute an unwarranted invasion of privacy.

The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79, 476 N.Y.S.2d 69, 464 N.E.2d 437). The statute, enacted in furtherance of the public's vested and inherent "right to know", affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information to "make intelligent, informed choices with respect to both the direction and scope of governmental activities" and with an effective tool for exposing waste, negligence and abuse on the part of government officers (Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [citing Public Officers Law § 84] ).

To implement this purpose, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted (see, Public Officers Law § 87[2]; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79-80, 476 N.Y.S.2d 69, 464 N.E.2d 437, supra). This presumption specifically extends to intraagency and interagency materials, such as the report sought in this proceeding, comprised of "statistical or factual tabulations or data" (see, Public Officers Law § 87[2][g][i] ). Exemptions are to be narrowly construed to provide maximum access, and the 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 (see, Matter of Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 464 N.E.2d 437, supra; Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463, supra). ^* Moreover, because FOIL has made full disclosure by by public agencies a public right, the status or need of the person seeking access is generally of no consequence in construing FOIL and its exemptions. Finally, we note that, while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses (see, Matter of Short v. Board of Managers, 57 N.Y.2d 399, 404, 456 N.Y.S.2d 724, 442 N.E.2d 1235; Matter of John P. v. Whalen, 54 N.Y.2d 89, 94, 444 N.Y.S.2d 598, 429 N.E.2d 117).

Intervenor relies on two FOIL exemptions to resist disclosure of his "Lost Time Report" for February 1983. First, he argues that the document is a personnel record within the meaning of Civil Rights Law § 50-a and, as such, is exempt from disclosure under Public Officers Law § 87(2)(a). Second, he contends that release of the document is barred because it would constitute an unwarranted invasion of personal privacy under Public Officers Law § 87(2)(b).

FOIL provides that an agency may deny access to records, or portions of records, that "are specifically exempted from disclosure by state or federal statute" (Public Officers Law § 87[2][a] ). Intervenor urges that the "Lost Time Report" is a personnel record specifically exempted by Civil Rights Law § 50-a. That statute provides, in pertinent part, that: "All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency * * * 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." Intervenor contends that even though no litigation involving him is pending this statute provides a blanket exemption foreclosing disclosure without his consent of any police personnel records used to evaluate his performance. Although we have never held that a State statute must expressly state it is intended to establish a FOIL exemption, we have required a showing of clear legislative intent to establish and preserve that confidentiality which one resisting a FOIL disclosure claims as protection (see, Matter of Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 81, 476 N.Y.S.2d 69, 464 N.E.2d 437, supra; Matter of John P. v. Whalen, 54 N.Y.2d 89, 96-97, 444 N.Y.S.2d 598, 429 N.E.2d 117, supra). The legislative history does not indicate that the Civil Rights Law provision was enacted with the intention claimed by intervenor.

Prior to the enactment of section 50-a, the confidentiality of police records was governed by common-law rules governing privileged "official information" which permitted public officials to withhold official records or communications under some circumstances (see generally, Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113, 117-119, 359 N.Y.S.2d 1, 316 N.E.2d 301; People v. Keating, 286 App.Div. 150, 153, 141 N.Y.S.2d 562 [Breitel, J.] ). The privilege was said to be highly qualified, however, and the court could compel disclosure where it was necessary to avoid false testimony or to secure useful testimony (see, People v. Keating, 286 App.Div. 150, 153, 141 N.Y.S.2d 562, supra [citing 8 Wigmore, Evidence, at 756 [3d ed] ). The enactment of the broad disclosure provisions of CPLR article 31 permitted parties to obtain evidence "material and necessary" to pending actions or proceedings and, as litigation involving municipalities and police officers multiplied, these provisions were used increasingly to obtain police records to attack police officers' credibility in pending litigation or for harassment purposes. Section 50-a was enacted to control that practice (see, Memorandum of...