Repeal of Civil Rights Law § 50-A & Amendments to FOIL

June 19, 2020 Repeal of Civil Rights Law § 50-A & Amendments to FOIL

Posted at 19:34h in Client Memos by
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KEEPING YOU INFORMED…

Governor Cuomo has signed into law legislation repealing Civil Rights Law § 50-a, the statute that previously protected law enforcement “personnel records used to evaluate performance toward continued employment or promotion” from disclosure pursuant to a Freedom of Information Law (FOIL) request for records. In its place are new provisions of FOIL that govern the disclosure of law enforcement disciplinary records. This legislation takes effect immediately.

Law Enforcement Disciplinary Records

FOIL now defines a law enforcement disciplinary record as any record “created in furtherance of a law enforcement disciplinary proceeding.” A law enforcement disciplinary proceeding is “the commencement of an investigation and any subsequent hearing or disciplinary action conducted by a law enforcement agency.” A law enforcement agency generally includes any agency or municipality (including the State), authority or department maintaining police officers, firefighters, firefighters/paramedics, deputy sheriffs, correction officers and probation officers.

Law enforcement disciplinary records that fit within the above definition include, but are not limited to, the following:

          1. complaints;
          2. allegations and charges against an employee;
          3. the name of the employee complained about or charged;
          4. the transcript and exhibits from a disciplinary proceeding;
          5. the disposition of a disciplinary proceeding; and
          6. the final written opinion or memorandum supporting the disposition and discipline.
          7. It is our opinion that this definition includes investigator, hearing officer and arbitrator findings and recommendations, as well as the employer’s final decision as set forth in a resolution or letter.

 
Disclosure & Redaction Rules

A law enforcement agency responding to a FOIL request for law enforcement disciplinary records must, as it would for any other requested personnel record prior to disclosure, redact the following information from the responsive record(s):

          1. Items involving the employee’s medical history, except for records obtained during the course of the agency’s investigation into the employee’s potential misconduct if the records are relevant to the disposition of the investigation;
          2. Employees’, their family members’, complainants’ or other individuals’ home addresses, personal telephone numbers, personal cell phone numbers and personal email addresses, except that the agency may, pursuant to Civil Service Law § 208, disclose the information to a union, when required pursuant to the Taylor Law, and may disclose work-related, public available information such as employees’ titles, salaries and dates of employment;
          3. Any social security numbers; and
          4. Information regarding an employee’s use of an employee assistance program, mental health service or substance abuse assistance program, unless the use is mandated as part of the ultimate resolution of a disciplinary proceeding.

 
A law enforcement agency responding to a request for law enforcement disciplinary records may, prior to disclosure, redact information regarding technical infractions. A “technical infraction” is defined as a law enforcement agency employee’s minor rule violation that is “solely related to the enforcement of administrative departmental rules that (a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person’s investigative, enforcement, training, supervision, or reporting responsibilities.”

In addition, law enforcement agencies may deny access to or redact information contained within a law enforcement disciplinary record if the information fits within any of FOIL’s exemptions to mandatory disclosure (for example, inter-agency or intra-agency communications that are exchanged for discussion purposes and are not final decisions; or information that, if disclosed, would constitute an unwarranted invasion of personal privacy).

Enforcement

There are no changes to this part of the law. As a refresher, FOIL provides the right to appeal an agency’s denial of access to records to the governing body or to the governing body’s designee and then, if the individual is not satisfied with the agency’s determination, to State court.

If the individual substantially prevails in court,[1] the court may order that the agency pay the individual’s reasonable attorneys’ fees and other reasonably incurred litigation costs if the agency failed to timely respond to the FOIL request or the internal FOIL appeal. If the individual substantially prevails in court and the court finds that the agency did not have a reasonable basis to deny access to the requested record, however, the court is required to issue an award of reasonable attorneys’ fees and litigation costs.

Since all of you have received, or are about to receive, multiple requests for all sorts of law enforcement records from various people and entities, we recommend that the first thing that you do is treat the request as you would any other FOIL; e.g., issue the standard five-day acknowledgement letter. Then, prepare everything that is responsive to the request and respond consistent with the FOIL’s requirements and timelines as described above. If you prefer, you may want to send us, or your municipal counsel, for review anything that you are thinking about withholding (or everything you have if that is easier for you) and we or they will do the redacting or walk you through it.

If you have any questions regarding the repeal of Civil Rights Law § 50-a, the FOIL amendments, or need assistance responding to a FOIL request for law enforcement disciplinary records, please contact Richard Zuckerman at rkz@lambbarnosky.com, Alyson Mathews at am@lambbarnosky.com, Alyssa Zuckerman at alz@lambbarnosky.com, or one of our other attorneys by calling (631) 694-2300.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2020

[1] Generally, a plaintiff “substantially prevails” in a FOIL appeal in State court if the court agrees with the plaintiff that a large number of the agency’s redactions within a disclosed record should not have been made or if the court agrees with the plaintiff that the agency should not have withheld the record completely in response to the FOIL request.