Opinion
Argued June 1, 2010.
decided July 1, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered June 11, 2009. The Appellate Division modified, on the law, a judgment of the Supreme Court, Albany County (Roger D. McDonough, J.), entered in a proceeding pursuant to CPLR article 78, which had (1) granted an application by petitioners to annul two determinations of respondent City of Albany denying petitioners' Freedom of Information Law requests seeking documents pertaining to the purchase of certain guns by the Police Department of the City of Albany, with the exception of any documents protected from disclosure under Civil Rights Law § 50-a, (2) directed respondent to turn over the documents, redacted pursuant to the court's decision, within seven days, and (3) denied petitioners' request for attorneys' fees. The modification consisted of reversing so much of the judgment as denied petitioners access to certain gun tags, and granting the petition to that extent, with the names of any current or former employees of the Albany Police Department redacted. The Appellate Division affirmed the judgment as modified.
In January 2006, the individual petitioner, a senior writer for petitioner newspaper, filed two requests under the Freedom of Information Law with respondent City of Albany, seeking documents pertaining to the alleged use of official Albany Police Department channels to purchase military-style assault rifles for personal, nonofficial use by a number of individual police officers in the 1990s. The city denied the requests, based upon an exemption for interagency or intraagency materials. On administrative appeal by petitioners, the city's records appeals officer released one document but upheld denial as to the remaining documents based upon the exemption for inter-agency or intra-agency materials, and as to records which could endanger a person's life or safety. The records at issue included gun tags, i.e., identification tags put on the guns returned to the police department by individuals who had the guns in their personal possession. Those tags each contained an individual's name, a serial number and some sort of identification number.
The Appellate Division concluded that the gun tags that included the names of current or former police officers were personnel records since they might be used to implicate officers in misconduct; that while the tags were personnel records, redacting the names of any current or former police department employees would adequately protect the individual officers; and that Supreme Court did not abuse its discretion in denying petitioners' request for counsel fees.
Matter of Capital Newspapers Div. of Hearst Corp. v City of Albany, 63 AD3d 1336, modified.
Office of General Counsel, Hearst Corporation, New York City ( Jonathan R. Donnellan, Eve B. Burton and Eva M. Saketkoo), for appellants.
John J. Reilly, Corporation Counsel, Albany ( Jeffery V. Jamison of counsel), for City of Albany, respondent.
Office of General Counsel, New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFLCIO, Albany ( Matthew P. Ryan and Ennio J. Corsi, of counsel), for Albany Police Officers Union, Local 2841 of New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, respondent.
David E. McCraw, New York City, Jacob P. Goldstein, Sabin, Bermant Gould LLP (Patricia A. Clark of counsel), Karen Kaiser, Assistant General Counsel, Associated Press, Anne B. Carroll, Deputy General Counsel, Dailey News, L.P., Barbara W. Wall, Associate General Counsel, Gannett Co., Inc., McLean, Virginia, Beth R. Lobel, New York City, Michael G Cameron, Assistant General Counsel, News America Incorporated, for Advance Publications, Inc., and others, amici curiae.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
MEMORANDUM .
The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.
Respondent City of Albany failed to meet its burden of demonstrating that the gun tags are "personnel records" under Civil Rights Law § 50-a. The Police Chiefs conclusory affidavit did not establish that the documents were "used to evaluate performance toward continued employment or promotion," as required by that statute (Civil Rights Law § 50-a). Consequently, the unredacted gun tags do not fall squarely within a statutory exemption and are subject to disclosure under the Freedom of Information Law (FOIL) ( see Public Officers Law § 87). Petitioners' claim that Supreme Court abused its discretion in denying counsel fees is without merit.
Order modified, etc.