MATTER OF DUNNIGAN v. Waverly Police Department
| Decision Date | 18 January 2001 |
| Parties | In the Matter of RICHARD W. DUNNIGAN, Appellant,<BR>v.<BR>WAVERLY POLICE DEPARTMENT, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Prior to September 1989, John Derrig was employed as a police officer by respondent. Thereafter, he worked as a detective for the Canandaigua Police Department and, in that capacity, investigated petitioner as a suspect in a robbery and assault occurring in September 1989 in the City of Canandaigua, Ontario County. As a result of that investigation, petitioner was indicted and convicted of the crimes of burglary in the first degree, robbery in the second degree, grand larceny in the fourth degree, and assault in the second degree; he was sentenced to a prison term of 12 to 24 years (see, Dunnigan v Keane, 137 F3d 117, 120-121, cert denied 525 US 840).
On June 10, 1999, petitioner submitted a written request to respondent under the Freedom of Information Law (Public Officers Law art 6) for certain personnel records of Derrig, specifically those pertaining to disciplinary actions. Respondent denied the request on the basis that the records were protected from public disclosure by Civil Rights Law § 50-a. Thereafter, petitioner commenced this CPLR article 78 proceeding seeking an order directing respondent to furnish the records. Respondent served an answer and moved to dismiss the petition on the ground that, inter alia, petitioner failed to join Derrig as a necessary party in the proceeding. Supreme Court granted the motion resulting in this appeal.
Under Public Officers Law § 87 (2) (a), an agency may deny access to public records which "are specifically exempted from disclosure by state or federal statute." Civil Rights Law § 50-a (1) provides, with respect to the personnel records of police officers, as follows: "All 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." "The legislative purpose [behind the statute] was to prevent disclosure of officers' personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155). Thus, the initial burden is on the party seeking the subject records to demonstrate "in good faith, `some factual predicate' warranting the intrusion into the personnel records" (Taran v State of New York, 140 AD2d 429, 432, quoting People v Gissendanner, 48 NY2d 543, 550; see, People v Henry, 242 AD2d 877, lv denied 91 NY2d 834; Flores v City of New York, 207 AD2d 302, 303). "This threshold requirement is designed to...
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