FOIL and Confidentiality of Law Enforcement Personnel Records

The Court of Appeals issued a decision last month addressing the confidentiality of law enforcement personnel records in response to a request pursuant to New York’s Freedom of Information Law (FOIL). In In the Matter of New York Civil Liberties Union v. New York City Police Department, the court rejected a FOIL request by the New York Civil Liberties Union (NYCLU) for certain New York Police Department (NYPD) disciplinary records on the grounds that they are exempted from disclosure by §50-a of the Civil Rights Law. A number of bar associations and other organizations, including the New York City Bar Association and the Legal Aid Society, have criticized the broad reach of §50-a and called for its repeal. In light of the Court of Appeals’ recent 5-2 decision, it is clear that any limitation on the scope of §50-a’s protections will have to come from the legislature.

In August 2011, the NYCLU submitted a FOIL request to the NYPD seeking all final decisions from Jan. 1, 2001 to the present from the NYPD’s internal disciplinary proceedings conducted in response to charges referred by the Civilian Complaint Review Board (CCRB). The NYCLU also requested documents identifying the discipline imposed on police officers in conjunction with each of those decisions. The NYPD rejected the request on the grounds that the records were exempt from disclosure under several FOIL exceptions, including Public Officers Law §87(2)(a) which provides an exception for records that are “specifically exempted from disclosure by state or federal statute.” The NYPD pointed to §50-a of the Civil Rights Law in particular. That section provides that “[a]ll personnel records used to evaluate performance toward continued employment or promotion … shall be considered confidential and not subject to inspection or review.” The only exceptions are if the officer at issue consents to the disclosure or a court authorizes disclosure after observing several procedural safeguards, including providing the officer at issue an opportunity to be heard and determining after an in camera review that “records are relevant and material in the action before” the court.