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decided: December 1, 1988.


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.


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 purpose of harassing or embarrassing correction officers (see, 67 N.Y.2d, at 568-569, supra); records having remote or no such potential use, like those sought in Capital Newspapers, fall outside the scope of the statute.

Finally, petitioner argues that the amendment of Civil Rights Law § 50-a (L 1981, ch 778) was intended to protect local but not State correction officers. We perceive no merit in this claim. The statute draws no such distinction and there is nothing in its underlying purpose or legislative intent which would support limiting its application to correction officers at local facilities. The need to protect correction officers from

    --> unrestricted examination of their personnel records is equally compelling for State and local employees.

Accordingly, the order of the Appellate Division should be affirmed, with costs.


Order affirmed, with costs.

Titone, J. (dissenting): I am very troubled by the majority's expansive reading of the term "personnel records" as that term is used in Civil Rights Law § 50-a (1). I am even more troubled by the majority's conclusion that this statutory exception to the general rule of disclosure is operative even where there is no pending litigation. The combination of the majority's holdings on these two points will lead to a broad and amorphous exemption from disclosure well beyond what the Legislature apparently intended. For that reason, I dissent.

It is by now familiar that our State has made a strong commitment to open government and public accountability, a commitment that has been expressed through the various provisions of the Freedom of Information Law (see, Matter of Capital Newspapers v Whalen, 69 N.Y.2d 246, 252; Matter of Capital Newspapers v Burns, 67 N.Y.2d 562, 565; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 N.Y.2d 75, 79). Consistent with this commitment and our belief that a democratic system of government functions most effectively when its citizens are well informed, our court has repeatedly stressed that under FOIL all records of public agencies are presumptively open to public inspection unless specifically exempted and that exemptions should be narrowly construed to provide maximum public access (Matter of Capital Newspapers v Burns, supra, at 566; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, at 79-80; Matter of Washington Post Co. v New York State Ins. Dept., 61 N.Y.2d 557; Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 571; see, Public Officers Law § 87 [2]; but cf., Matter of Newsday Inc. v Sise, 71 N.Y.2d 146). Viewed against that backdrop, the majority's conclusion that the inmate grievance documents sought here are "personnel records" within the "narrowly specific" exemption created by Civil Rights Law § 50-a (1) can only be regarded as a major retreat from these principles.

The administrative procedure that generates these grievance documents is mandated by Correction Law § 139, which was adopted after the tragic uprising at Attica prison (see, Matter of Johnson v Ward, 64 A.D.2d 186). Its purpose is to provide a nonviolent, non-adversarial method of resolving internal problems within the prisons (Matter of Patterson v Smith, 53 N.Y.2d 98, 101; see, 7 NYCRR 701.1). As one of the attorneys representing respondent in this proceeding noted, "the grievance system was instituted * * * as a formal mechanism to air grievances and as a safety valve to allow an inmate to vent his feelings and frustrations in writing".

As is evident from this brief summary of the purposes underlying the grievance procedure, the documents that petitioner seeks, inmate grievances filed in connection with a particular correction officer, were not generated pursuant to any personnel policy or procedure of the Department. Indeed, the conclusion that the grievance system is entirely separate from the Department's system of personnel evaluation is underscored by the regulation requiring an employee's written consent before a grievance document may be made part of his or her personnel file (7 NYCRR 701.14 [b]).

Nonetheless, the majority concludes that these grievance documents are "personnel records" within the meaning of Civil Rights Law § 50-a (1). The majority begins with the premise that the term "personnel records," which is otherwise undefined, is synonymous with the specific criteria listed immediately after the term is used in the statute. Thus, in the majority's view, "personnel records" are, quite simply, those documents that are "used to evaluate performance toward continued employment or promotion, [and are] under the control of any [of the listed agencies]" (see, Civil Rights Law § 50-a [1]). The grievance records sought here are then deemed exempt under that definition because they are "received, processed and maintained as part of a correctional facility's operations" and "'are clearly relied upon in evaluating the employee's performance'" (majority opn, at 31). I would dispute this conclusion both as a matter of simple statutory construction and as a matter of sound public policy.

With respect to the question of statutory construction, it seems clear that the criteria on which the majority relies were intended to create an additional limitation upon, rather than a complementary definition of, the term "personnel records." As is apparent from the wording of the statute, the Civil Rights Law § 50-a (1)'s exemption from disclosure was intended to apply only when the documents in question both qualify as "personnel records" and are (1) used to evaluate performance and (2) under the agency's control. Indeed, if, as the majority holds, the Legislature intended the latter two elements to be the only criteria for triggering the statutory exemption, it would have omitted the term "personnel records" entirely and simply stated that "all records used to evaluate performance * * *, under the [law enforcement agency's] control" are exempt from disclosure. Given the statute's language, the Legislature must have intended for the courts to give independent effect to the term "personnel records."

With regard to the policy considerations, I note that the majority's decision to equate "personnel records" with documents used to evaluate employees' performance opens the Civil Rights Law § 50-a (1) exemption to almost unlimited use. As anyone with administrative or supervisory experience can attest, virtually any document created by or about an employee may be used as a basis for performance evaluation. Thus, under the majority's construction, Civil Rights Law § 50-a (1) creates a broad shield that will insulate a wide range of documents maintained by the listed law enforcement agencies from public view. I cannot agree that such a result is consistent either with the Legislature's intentions or with the sound public policies that underlie FOIL.

Having concluded that the term "personnel records" cannot and should not be read expansively to include all agency documents that could conceivably be used to evaluate employee performance, I would hold that the exemption prescribed in Civil Rights Law § 50-a (1) is limited to documents that are used for evaluation, are within the agency's control and are created in connection with the delineated agencies' personnel procedures and policies. Under that view, the grievance documents petitioner seeks would not be exempt, since they were generated in connection with the statutorily mandated inmate grievance procedure, an administrative mechanism that exists for the benefit of prisoners and is completely unrelated to the Department of Correctional Services' personnel practices (cf., Matter of Capital Newspapers v Burns, supra [concerning disclosure of employee "Lost Time Reports"]).

Moreover, even if I were to agree that these grievance documents are "personnel records" within the meaning of Civil Rights Law § 50-a (1), I could not cast my vote for an affirmance because, in my view, another critical component of the right to an exemption is missing here. In Matter of Capital Newspapers v Burns (supra, at 568-569), we held that the statute could not be invoked as a bar to disclosure of certain personnel records because the request for disclosure had been made in a "nonlitigation context." We based this holding on the legislative history of the statute and on the observation that "the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, 'to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action '" (67 N.Y.2d, at 569, supra). In other words, the statute was designed to prevent the use of discovery tools to conduct aimless fishing expeditions in litigated matters when the only result would be unnecessary harassment or embarrassment.

In order to reach its conclusion that Civil Rights Law § 50-a (1) may be invoked here, the majority has had to reinterpret and give a narrower cast to the court's holding in Capital Newspapers. Thus, while the Capital Newspapers court concluded, without qualifications, that the statute was intended to operate only "'in the context of a civil or criminal action'" (67 N.Y.2d, at 569, supra), the majority in this case states that requested personnel records need not be "related to pending litigation before receiving the statute's protection", suggesting that the statute governs even when the request merely "could have [a] relation to potential litigation" (majority opn, at 33). Once again, the majority has strained to reach a result that renders the Civil Rights Law § 50-a (1) exemption far broader than its drafters intended. In the process, it has created an anomalous and unworkable rule.

First, the majority has provided no guidance as to how the lower courts may distinguish between disclosure requests with no relation to litigation of any kind and those which are potentially related to some future, yet-to-be identified litigation. Apart from sheer speculation and assumptions based upon the applicant's identity, no solution to this problem is readily apparent. Indeed, the majority in this case has not explained its basis for distinguishing between the information request in this case and that made in Capital Newspapers, and the only distinction that suggests itself is that urged by respondents: i.e., that the request in Capital Newspapers was made by a news media applicant, while the request in this case was made by a legal advocacy organization specializing in prisoners' rights.

The second problem with the majority's analysis is that it transforms the qualified exemption created by the statute into a mixed exemption, with some records receiving absolute protection while others are subject to court-ordered disclosure. However, Civil Rights Law § 50-a (1) makes all law enforcement personnel records presumptively exempt from disclosure and permits disclosure of any such record if release is "mandated by lawful court order" (Civil Rights Law § 50-a [1]). The reference to court-ordered disclosure in subdivision (1) is unqualified and clearly was intended to apply to all requests for information covered by that subdivision. Thus, there is simply no basis in the statutory language or design for the distinction the majority now draws between records sought in the context of pending litigation, which are subject to court-ordered disclosure, and records sought for other purposes, which are not even eligible for judicial consideration.

Since the provision for court-ordered disclosure is unqualified and the determination as to whether disclosure should be ordered under the statute depends upon whether the records are "relevant and material in the action before [the court] " (Civil Rights Law § 50-a [3] [emphasis supplied]), it seems clear beyond doubt that the statute was intended to apply, as we held in Capital Newspapers (supra), only when a request for disclosure is made in the context of pending litigation. Indeed, the existence of pending litigation is essential to the operation of the statute, since without it there is no basis for the court to apply the statutory criteria of relevance and materiality or to determine whether documents presumptively exempt under the statute should be released.

In the final analysis, the conclusion that court-ordered disclosure is available only in the context of ongoing litigation cannot be reconciled either with the statutory language or with our recent holding in Capital Newspapers (supra), in which disclosure was ordered precisely because there was no pending litigation. I can perceive only two ways in which the holdings in Capital Newspapers and this case can be reconciled. Either Capital Newspapers has been overruled sub silentio or a new, tripartite disclosure system for law enforcement personnel records has been created. If, in fact, Capital Newspapers is still the law, then requests for information having remote or no potential use in litigation are still subject to disclosure without qualification. In contrast, records that are sought within the context of pending litigation are subject to the Civil Rights Law § 50-a privilege, but may be released upon a judicial finding that they are relevant and material in the litigation. Finally, under the majority's new and broadened view of Civil Rights Law § 50-a's coverage, records which a court somehow discerns may be useful in potential, yet-to-be determined litigation are absolutely privileged, since they fall within the statute's provision for exemption from disclosure but are not within the statutory provisions for relief through judicial intervention (see, Civil Rights Law § 50-a [2]-[3]). I can see no rational relationship between these distinctions and the purposes underlying the statute. Accordingly, I cannot accept that this anomalous result is what the Legislature had in mind.

In closing, I would stress that while I am sensitive to the potential discomfort and legitimate concern that many law enforcement officers have in relation to this type of disclosure, such considerations do not alone furnish a sound basis for shielding all records relating to their official conduct from public view. The Legislature struck an appropriate balance between these concerns and the competing concern of promoting accountability of public servants by creating a "narrowly specific" exemption from disclosure for certain records, subject to judicial oversight (see, Matter of Capital Newspapers v Burns, supra, at 569). By construing this exemption broadly and holding that it is applicable in a wide variety of situations involving "potential litigation," the majority has tipped the balance in favor of the law enforcement officers' desire for privacy and, in the process, has impaired the legislative values of openness and accountability that are implicit in the statutory scheme. Because that result is inconsistent with both our prior decisions and the clearly declared legislative intent, I cannot join my colleagues' decision to affirm the Appellate Division's decision in this case.

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