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MATTER PRISONERS' LEGAL SERVICES NEW YORK v. NEW YORK STATE DEPARTMENT CORRECTIONAL SERVICES (12/01/88)

COURT OF APPEALS OF NEW YORK 1988.NY.52866 <http://www.versuslaw.com>; 535 N.E.2d 243; 73 N.Y.2d 26 decided: December 1, 1988. IN THE MATTER OF PRISONERS' LEGAL SERVICES OF NEW YORK, APPELLANT,v.NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered March 28, 1988, which affirmed a judgment of the Supreme Court (Harry Edelstein, J.), entered in Dutchess County in a proceeding pursuant to CPLR article 78, dismissing the petition for an order permitting petitioner to inspect or copy the grievance records involving a correction officer at the Fishkill Correctional Facility. Counsel Dan Getman, Robert Selcov, John A. Gresham and David C. Leven for appellant. Robert Abrams, Attorney-General (Harvey M. Berman and O. Peter Sherwood of counsel), for respondent. Counsel Richard R. Rowley and Mark T. Walsh for New York State Inspection, Security and Law Enforcement Employees, District Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, amicus curiae. Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa concur with Judge Hancock, Jr.; Judge Titone dissents and votes to reverse in a separate opinion. Author: Hancock, Jr.


Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered March 28, 1988, which affirmed a judgment of the Supreme Court (Harry Edelstein, J.), entered in Dutchess County in a proceeding pursuant to CPLR article 78, dismissing the petition for an order permitting petitioner to inspect or copy the grievance records involving a correction officer at the Fishkill Correctional Facility.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa concur with Judge Hancock, Jr.; Judge Titone dissents and votes to reverse in a separate opinion.

Author: Hancock, Jr.

 Opinion OF THE COURT

Do inmate grievances against State correction officers and the administrative decisions relating thereto constitute "personnel records, used to evaluate performance toward continued employment or promotion" (Civil Rights Law § 50-a [1]) which are exempt from disclosure under the Freedom of Information Law (FOIL) (see, Public Officers Law § 87 [2] [a])? This is the central question presented in the article 78 proceeding brought by petitioner, Prisoners' Legal Services, for an order permitting it to inspect or copy the grievance records involving a correction officer at the Fishkill Correctional Facility. The courts below, distinguishing Matter of Capital Newspapers v Burns (67 N.Y.2d 562), held that the records sought are exempt from disclosure under Civil Rights Law § 50-a and dismissed the proceeding. We granted leave to appeal and now affirm.*fn1

In its petition, Prisoners' Legal Services states that it made a request for access to inmates' grievances and agency decisions pertaining to a particular correction officer at Fishkill after receiving numerous complaints from prisoners about her conduct. When the acting superintendent of Fishkill denied the request, petitioner filed an administrative appeal to respondent Department of Correctional Services which upheld the denial. Respondent held that, because the grievance information and agency determinations "would be utilized in evaluating work performance of [the officer]", they were exempt from disclosure under Civil Rights Law § 50-a. In affirming Supreme Court's dismissal of the petition, the Appellate Division found that the records sought are "considered to be part of an employee's personnel record and are clearly relied upon in evaluating the employee's performance" (138 A.D.2d 712, 713-714). It rejected petitioner's contention that, because no lawsuit had been commenced, the Civil Rights Law § 50-a exemption should not apply. The court reasoned that the legislative purpose of protecting police and correction officers from harassment and reprisals would be served by granting the statutory protection before as well as after commencement of an action (138 A.D.2d, at 714). We agree with these conclusions.

In addressing respondent's contention that inmate grievance documents may be withheld as confidential personnel records, we are mindful that FOIL is to be liberally construed and its exemptions narrowly interpreted (see, Public Officers Law § 84; Matter of Capital Newspapers v Whalen, 69 N.Y.2d 246, 252; Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 571). The exemption in question states that an agency may deny access to records which are "specifically exempted from disclosure" by a State statute (Public Officers Law § 87 [2] [a]). Here, the applicable State statute provides that "personnel records, used to evaluate performance toward continued employment or promotion * * * shall be considered confidential and not subject to inspection or review [except on written consent or by court order]" (Civil Rights Law § 50-a [1]). The precise statutory question presented does not involve an interpretation of FOIL, but the meaning of "personal records" under Civil Rights Law § 50-a (1)*fn2 -- i.e., whether they encompass the particular grievance records demanded here (see, Matter of Newsday, Inc. v Sise, 71 N.Y.2d 146, 150-151). If so, those records are, by express terms of the statute, to be "considered confidential" and not subject to review and, thus, access may be properly withheld under Public Officers Law § 87 (2) (a) (see, Matter of Newsday, Inc. v Sise, supra).

Section 50-a provides no definition or other language explaining or qualifying what is covered by the term "personnel records" except that such records must be under the control of the particular agency or department and be used to evaluate performance toward continued employment or promotion. Under these limited criteria, however, records pertaining to inmate grievances would fall within the statute. They are documents containing personal, employment-related information about a public employee, namely, complaints made by inmates about the on-the-job conduct of certain correction officers; these documents are received, processed and maintained as part of a correctional facility's operations (see, Correction Law § 139; Inmate Grievance Program 7 NYCRR part 701; DOCS Policy Directive No. 4040); and, as found by the Appellate Division, they "are clearly relied upon in evaluating the employee's performance" (138 A.D.2d 712, 713, supra). (Accord, Matter of Gannett Co. v James, 86 A.D.2d 744, 745, lv denied 56 N.Y.2d 502 [complaints against police officers held to be personnel records used to evaluate performance].)

Documents pertaining to misconduct or rules violations by correction officers -- which could well be used in various ways against the officers -- are the very sort of record which, the legislative history reveals, was intended to be kept confidential. The legislative purpose underlying section 50-a when originally enacted to apply to police officers (see, Carpenter v City of Plattsburgh, 105 A.D.2d 295, 298, affd for reasons stated below 66 N.Y.2d 791) and later amended to cover correction officers (see, Matter of Capital Newspapers v Burns, 67 N.Y.2d 562, 568, supra) was the same: to protect the officers from the use of records -- including unsubstantiated and irrelevant complaints of misconduct -- as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation (see, e.g., Mem of Senator Padavan and Assemblyman DeSalvio, and Mem of Division of Criminal Justice Services, Governor's Bill Jacket, L 1976, ch 413; Mem of Senator Marino in support of L 1981, ch 778, 1981 NY Legis Ann, at 419; various memoranda in support of L 1981, ch 778 filed by Assemblyman Kremer, the State Commission of Correction, the American Federation of State, County, and Municipal Employees, and the State Division of Budget).

Petitioner argues, nonetheless, that the "personnel records" exemption should not apply because records of prisoners' complaints of misconduct or rules violations against a correction officer -- although held to be of significance to a superior in considering continued employment or promotion (138 A.D.2d, at 713) -- are not actually maintained as part of officers' employment records or in their personnel files; they are kept by the Inmate Grievance Resolution Committee (see, 7 NYCRR 701.14 [b]; DOCS Policy Directive No. 4040 [IV] [B] [3]). But whether a document qualifies as a personnel record under Civil Rights Law § 50-a (1) depends upon its nature and its use in evaluating an officer's performance -- not its physical location or its particular custodian. Indeed, it has been held that applicability of the statute "cannot be determined simply on the basis of where the information is stored" (Matter of Capital Newspapers v Burns, 109 A.D.2d 92, 95, affd 67 N.Y.2d 562, supra; see also, Matter of Gannett Co. v James, supra). The construction petitioner urges seems inimical to the very statutory purpose of preventing the use of personnel records as a device for harassing or embarrassing police and correction officers. The records of prisoners' complaints requested here, regardless of where they are kept, could certainly be employed for these purposes. Such an interpretation -- which would frustrate the aim of the statute -- should be rejected (see, Matter of Newsday, Inc. v Sise, supra, at 152).

Similarly, we reject the argument that section 50-a was intended to afford protection only after a particular grievance has become the subject of litigation. Again, the argument finds no support in the statutory language and authority on the point is to the contrary (see, Matter of Thomas v New York City Tr. Police Dept., 91 A.D.2d 898, 899).

Contrary to the dissent, the conclusion that records may be protected from disclosure under section 50-a, even though not sought for actual litigation, is entirely consistent with the statutory scheme. The statute bars disclosure of personnel records "considered confidential" under section 50-a (1), absent consent of the officer involved, except as mandated by a "lawful court order"; it further provides, under section 50-a (3), that such a court order may not be issued unless, after a hearing and in camera inspection, it appears to the reviewing Judge that "the records are relevant and material in the action before him". There can be no question that the statute thus permits court-ordered disclosure of personnel records within its protection -- i.e., those that have potential use in harassing and embarrassing officers in litigation -- only in the context of an ongoing litigation. But this does not suggest, as the dissent argues, that personnel records must first be related to pending litigation before receiving the statute's protection. If such a narrow view of section 50-a were adopted, the statute could be circumvented by the simple expedient of making FOIL requests for the records first and bringing the lawsuit later. The Legislature could not have intended to enact a statute that could so easily be rendered ineffectual (see, McKinney's Cons Laws of NY, Book 1, Statutes § 144, at 291).

Moreover, Matter of Capital Newspapers v Burns (supra) -- permitting a newspaper reporter FOIL access to police records -- does not support petitioner's request in this case. Unlike the grievance records demanded here by Prisoners' Legal Services, the police officers' attendance and sick leave records at issue in Capital Newspapers were sought for a purpose and in a context that could have had no relation to potential litigation. In concluding that the materials requested in Capital Newspapers did not constitute the kind of personnel records protected under section 50-a, we by no means suggested that the application of that statute was limited to an ongoing litigation. Rather, we simply recognized that the legislative intent in enacting the 1981 amendment to section 50-a was to prevent release of sensitive personnel records that could be used in litigation for the ...


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