Photo: Seth Wenig/AP

An appellate court in Albany has ruled that the names of correction officers can not be withheld from members of the public seeking documents under the freedom of information law on certain incidents reported in state prisons, including when force is used against an inmate.

It's the first time the issue has been considered by the Appellate Division, Third Department, which said in the decision that a section of state civil rights law often used by law enforcement to shield certain records from disclosure did not apply in this case.

“Upon our review of the nature and facility uses of unusual incident reports, use of force reports and misbehavior reports, as well as their lack of potential to be used abusively against correction officers, we conclude that such documents do not qualify as personnel records within the meaning of Civil Rights Law Section 50-a,” Justice Christine Clark wrote.

The lawsuit was brought against the state three years ago by Prisoners' Legal Services of New York, a group that aims to improve access to state courts for incarcerated individuals.

They were represented before the appellate court by Sean Heikkila, an associate at Debevoise & Plimpton in Manhattan. Daniel Abuhoff and Joshua Smith, respectively a partner and associate at the firm, also worked on the case.

“We're very pleased with the decision. PLS was a great client to work with,” Smith said.

The group had alleged that the state Department of Corrections and Community Supervision had decided to redact the names of correction officers when responding to requests for unusual incident reports, use of force reports, inmate behavioral reports and other records in 2016. The agency had produced most of the records, but withheld the names of the officers involved.

That was unusual because, for the four decades prior to that decision, the agency had always provided those documents to PLSNY without any redactions, according to Karen Murtagh, the group's executive director. She's been with PLSNY for more than three decades, during which she said the names of correction officers were never withheld.

“We have always been able to obtain these documents with officers' names, without redactions,” Murtagh said. “For 40 years, we've received the documents with nothing redacted. All of a sudden, three years ago, DOCCS started to redact huge parts of the documents.”

Murtagh said they were told the agency had always had such a policy, but that different information officers around the state had been inconsistent on following it. After some training, they started to respond to freedom of information requests from PLSNY without including the names of correction officers.

“It didn't make any sense to us,” Murtagh said. “The fact of the matter is that it wasn't inconsistent across the state.”

The redactions were a problem, Murtagh said, because those documents can be used by inmates and their attorneys to hold correction officers accountable if they're suspected of acting inappropriately. The state had argued that they didn't have to disclose the names because, in their view, the documents were “personnel records.” Clark rejected that label in her decision.

“Given their factual nature and that each is written by a witness or witnesses with knowledge of the underlying facility event, we find unusual incident reports, use of force reports and misbehavior reports to be more akin to arrest reports, stop reports, summonses, accident reports and body-worn camera footage, none of which is quintessentially 'personnel records,'” Clark wrote.

Section 50-a of the state civil rights law allows for personnel records of police officers, firefighters and correction officers to be withheld from public disclosure. In order for those records to be made public under the law, the individual would have to consent to their disclosure, or a judge would have to order their release.

The law has been used in the past by law enforcement agencies, including the New York City Police Department, to withhold certain disciplinary records from public disclosure. Criminal justice advocates have long called on lawmakers in Albany to repeal the statute, which would allow those documents to be released under the freedom of information law, or FOIL.

The bill to repeal 50-a, which is sponsored by Assemblyman Daniel O'Donnell, D-Manhattan, and State Sen. Jamaal Bailey, D-Bronx, hasn't gained much traction in the Legislature as of yet. Lawmakers have said they plan to ramp up discussions on the measure in the coming weeks, with an expectation to move it before they're scheduled to leave Albany for the year in June.

The measure is opposed by the NYC Police Benevolent Association, which has claimed that if the identifying information of officers is made public, they could be left open to retaliation and harassment from the public. They've argued those records are already available to those who would need them for claims of misconduct, like prosecutors and civilian review boards.

The appellate court's decision doesn't necessarily hinder that argument, since the case concerned correction officers, but it certainly doesn't help it. Clark said the court came to its decision, partly, because the state had not shown that disclosing the names of correction officers would cause them any harm.

“With regard to the legislative objective of Civil Rights Law Section 50-a, respondents have not demonstrated a 'substantial and realistic potential' for the unredacted reports to be used against the officers in a harassing or abusive manner,” Clark wrote.

Murtagh said, if anything, having those names available through such requests is beneficial to members of the public, including attorneys who represent incarcerated individuals.

“I think the importance of this case is that it continues to ensure some level of transparency in prisons,” Murtagh said. “Because most of what happens in prisons happens behind closed doors, it's very difficult to know what's going on. It's incredibly important that lawyers representing people in prisons have as much information as they can get to ensure people's rights are protected.”

The decision was unanimous and reversed a ruling from the trial court that allowed the state to redact the names of correction officers in the requested documents. The state could seek to appeal the appellate decision to the state's highest court, which would make a definitive ruling on the issue.

A spokesman for DOCCS said the agency was reviewing the decision and declined to comment further.

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