Ruberti, Girvin & Ferlazzo P.C. v. New York State Div. of State Police

• Decision Date: 18 April 1996
• Citation: 641 N.Y.S.2d 411,218 A.D.2d 494
• Parties: In the Matter of RUBERTI, GIRVIN & FERLAZZO P.C., Respondent-Appellant, v. NEW YORK STATE DIVISION OF STATE POLICE, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 411

641 N.Y.S.2d 411

218 A.D.2d 494

In the Matter of RUBERTI, GIRVIN & FERLAZZO P.C., Respondent-Appellant, v. NEW YORK STATE DIVISION OF STATE POLICE, Appellant-Respondent.

Supreme Court, Appellate Division,

Third Department.

April 18, 1996.

Dennis C. Vacco, Attorney-General (Frank K. Walsh, of counsel), Albany, for appellant-respondent.

Ruberti, Girvin & Ferlazzo P.C. (E. Michael Ruberti, of counsel), Albany, for respondent-appellant.

Before CARDONA, P.J., and CREW, WHITE, YESAWICH and SPAIN, JJ.

CREW, Justice.

Cross appeals from a judgment of the Supreme Court (Harris, J.), entered May 20, 1994 in Albany County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to release certain information pursuant to the Freedom of Information Law.

Petitioner, a law firm, represents certain female members of respondent who believe that they have been the victims of gender-based discrimination. By letter dated April 22, 1993, petitioner sought access under the Freedom of Information Law (Public Officers Law art 6) (hereinafter FOIL) to certain documents relating to respondent's promotional processes. Insofar as is relevant to this appeal, the requested documents included (1) test scores obtained on the written promotional examinations for the positions of lieutenant and sergeant, categorized by gender, (2) scores on the performance evaluations for those members who took and/or passed the aforesaid examinations, categorized by gender, (3) scores on oral interviews for those members who took and/or passed the promotional examination for the position of lieutenant, categorized by gender, (4) the troop, zone and station assignment of each sworn member of respondent, (5) the educational degrees possessed by respondent's civilian employees, (6) all complaints of discrimination and harassment made against respondent's members filed with respondent, certain enumerated agencies or courts, (7) personnel complaints made against respondent's members, and (8) records of any findings made by a court or government agency that respondent engaged in gender discrimination or harassment.

Access to the cited records ultimately was denied on various grounds and, following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding seeking to compel respondent to disclose the requested documents. Supreme Court granted petitioner's request to the extent that it ordered disclosure of the various test scores, the educational degrees possessed by respondent's civilian employees, information pertaining to complaints of discrimination and any findings of courts or government agencies relating to gender discrimination or harassment. Supreme Court denied petitioner's request insofar as it pertained to the troop, zone and station assignments of respondent's sworn members, reasoning that respondent had established that the release of such information could jeopardize the safety of those officers, and, further, denied petitioner's request for counsel fees. These cross appeals ensued.

It is well settled that all agency records are presumptively available for public inspection and copying, unless the documents in question fall within one of the enumerated exemptions set forth in Public Officers Law § 87(2) (see, Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750; Matter of Legal Aid Socy. of Northeastern N.Y. v. New York State Dept. of Social Servs., 195 A.D.2d 150, 152, 605 N.Y.S.2d 785). Inasmuch as FOIL is designed to grant the public "maximum access to the records of government" (Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932), the exemptions available thereunder are to be narrowly construed, and "the agency seeking to prevent disclosure bears the burden of demonstrating the applicability of the particular exemption claimed" (Matter of Legal Aid Socy. of Northeastern N.Y. v. New York State Dept. of Social Servs., supra, at 153, 605 N.Y.S.2d 785, see Matter of Hanig v. State of New York Dept. of Motor Vehicles, supra, at 109, 580 N.Y.S.2d 715, 588 N.E.2d 750). Moreover, the agency at issue must "articulat[e] a particularized and specific justification for denying access" to the requested documents (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665).

Respondent initially contends that the various scores obtained by its members on certain promotional examinations and evaluations (item Nos. 1 through 5 of petitioner's request) and any personnel or discrimination complaints filed against respondent's members from January 1, 1973 through the present (item Nos. 22 through 24 of petitioner's request) constitute "personnel records" within the meaning of Civil Rights Law § 50-a(1) and, hence, are exempt from disclosure pursuant to Public Officers Law § 87(2)(a), which permits an agency to deny access to records or portions thereof that "are specifically exempted from disclosure by state or federal statute". We agree.

Civil Rights Law § 50-a(1) provides, in relevant part, that "[a]ll personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof * * * shall be considered confidential and not subject to inspection or review without the express written consent of such police officer". In this regard, it cannot seriously be argued that the test scores at issue, as well as any personnel or discrimination complaints filed against respondent's members, fail to qualify as "personnel records" within the meaning of Civil Rights Law § 50-a(1). Not only did respondent's Assistant Deputy Superintendent for Administration aver that such scores and complaints are in fact used to evaluate the performance and employment status of respondent's members, but courts have recognized, and indeed it is readily apparent, that the records at issue here, particularly those relating to complaints of misconduct, are the very types of documents that the statute was designed to protect in the first instance (see, e.g., Matter of Prisoners' Legal Servs. of N.Y. v. New York State Dept. of Correctional Servs., 73 N.Y.2d 26, 31, 538 N.Y.S.2d 190, 535 N.E.2d 243; Matter of Lyon v. Dunne, 180 A.D.2d 922, 923, 580 N.Y.S.2d 803; lv. denied 79 N.Y.2d 758, 584 N.Y.S.2d 446, 594 N.E.2d 940; Matter of Gannett Co. v. James, 86 A.D.2d 744, 745, 447 N.Y.S.2d 781, lv. denied 56 N.Y.2d 502, 450 N.Y.S.2d 1023, 435 N.E.2d 1099).

Moreover, we believe that affording the documents at issue the protection offered by Civil Rights Law § 50-a(1) is entirely consistent with the underlying purpose of the statute--namely, to "prevent[ ] the use of personnel records as a device for harassing or embarrassing police and correction officers" (Matter of Prisoners' Legal Servs. of N.Y. v. New York State Dept. of Correctional Servs., supra, at 32, 538 N.Y.S.2d 190, 535 N.E.2d 243). In this regard, the Court of Appeals has made clear that application of Civil Rights Law § 50-a(1) is in no way limited to ongoing litigation matters and that only those records having "remote or no such potential use" will fall outside the scope of the statute (id., at 33, 538 N.Y.S.2d 190, 535 N.E.2d 243). As the information sought plainly relates to the claims of gender discrimination made by petitioner's clients, it cannot be said that the requested documents would have little or no potential use in any lawsuit commenced against respondent or any of its members on that ground. Accordingly, item Nos. 1 through 5 and Nos. 22 through 24 are deemed exempt from disclosure under Civil Rights Law § 50-a(1) and Public Officers Law § 87(2)(a). ¹

We reach a contrary conclusion, however, with respect to respondent's asserted basis for refusing to disclose the educational background of its civilian employees. Respondent contends that such information is exempt from...