The opinion of the court was delivered by: Kane, J.
Calendar Date: March 25, 2009
Before: Cardona, P.J., Peters, Lahtinen, Kane and McCarthy, JJ.
Appeal from a judgment of the Supreme Court (McDonough, J.), entered July 23, 2008 in Albany County, which partially granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul two determinations of respondent City of Albany denying petitioners' Freedom of Information Law requests.
In January 2006, petitioner Brendan Lyons, a senior writer for the Albany Times Union, filed two requests under the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) with respondent City of Albany. The FOIL requests sought 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 FOIL requests based upon an exemption for inter-agency or intra-agency materials (see Public Officers Law § 87  [g]). On administrative appeal by Lyons and his employer, the City's records appeals officer released one document but upheld denial as to the remaining documents based upon the exemptions for inter-agency or intra-agency materials and records which could endanger a person's life or safety (see Public Officers Law § 87  [f], [g]).
In August 2006, petitioners commenced this proceeding challenging the City's determination (see Public Officers Law § 89  [b]). After Supreme Court (Hard, J.) denied the City's motion to dismiss the petition, the City answered. In October 2007, respondent Albany Police Officers Union moved to intervene. The court granted the motion without opposition. The Union opposed disclosure of documents under Civil Rights Law § 50-a.
In June 2008, Supreme Court (McDonough, J.) held that many of the documents could be disclosed, but that any documents or portions thereof which identified police officers were exempt from disclosure under Civil Rights Law § 50-a. Petitioners appeal.*fn1
While agency records are presumptively available for public inspection and disclosure under FOIL (see Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 ; Matter of Beyah v Goord, 309 AD2d 1049, 1049 ), an agency may deny access to records which "are specifically exempted from disclosure by state or federal statute" (Public Officers Law § 87  [a]). One such exemption is found in Civil Rights Law § 50-a (1), which provides that "[a]ll personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency... shall be considered confidential and not subject to inspection or review." The City has the burden of proving that the exemption applies (see Public Officers Law § 89  [b]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; Matter of Beyah v Goord, 309 AD2d at 1050).
To determine whether the "gun tags" are exempt from disclosure under these statutes, we must first decide if they are "personnel records." Civil Rights Law § 50-a does not extensively define or qualify what documents constitute "personnel records," other than requiring that they be under a police agency's control and be used to evaluate the employee's performance for continued employment or promotion (see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26, 31 ). The Court of Appeals has clarified that personnel records include those documents "containing personal, employment-related information about a public employee...; are received, processed and maintained as part of a [public employer's] operations; and... 'are clearly relied upon in evaluating the employee's performance'" (id. [citations omitted]; see Matter of Argentieri v Goord, 25 AD3d 830, 831 ). "[W]hether a document qualifies as a personnel record under Civil Rights Law § 50-a (1) depends upon its nature and use in evaluating an officer's performance" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d at 32). Documents pertaining to an officer's misconduct are the type of records specifically intended to be kept confidential under the statute, mainly to prevent use of the records in litigation to harass, embarrass, degrade or impeach an officer's integrity (see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 157-158 ; Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d at 31-32; Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 497-498 ; see also Matter of Argentieri v Goord, 25 AD3d at 831-832).
The gun tags that include the names of current or former police officers are personnel records.*fn2 Although these documents each contain only an individual's name and a gun serial number, when coupled with other information they may be used to implicate officers in misconduct -- namely illegal personal possession of assault rifles and misuse of the City's tax-exempt status to avoid excise taxes when purchasing the guns. According to the City's chief of police, documents in the investigative file concerning this gun scandal would be used to evaluate continued employment and promotion of officers. As the gun tags are the type of documents that, when considered in conjunction with other investigative records, could be used to impose discipline or affect continued employment or promotions -- whether or not they were actually used for that purpose*fn3 -- they constitute personnel records (compare Matter of Argentieri v Goord, 25 AD3d at 831-832; Matter of Ruberti, Girvin & Ferlazzo v New York State Dept. of Correctional Servs., 218 AD2d at 497-498).
While the gun tags are personnel records, redacting the names of any current or former police department employees would adequately protect the individual officers. Accordingly, the City must disclose the redacted gun tags (see Matter of Humane Socy. of United States v Empire State Dev. Corp., 53 AD3d 1013, 1018 , lv denied 12 NY3d 701 ; compare Public Officers Law § 89  [c] [i]).
Supreme Court did not abuse its discretion in denying petitioners' request for counsel fees. The court "may" award counsel fees and costs to a party who substantially prevails in a proceeding challenging a FOIL denial where the records involved were of clearly significant interest to the general public and the agency had no reasonable basis in law for withholding the records (Public Officers Law § 89  [c]; see Matter of Henry Schein, Inc. v Eristoff, 35 AD3d 1124, 1125-1126 ). Even if all of the statutory requirements are met, however, "an award of counsel fees still lies within the sound discretion of the trial court" (Matter of Grace v Chenango County, 256 AD2d 890, 891-892 ; see Matter of Henry Schein, Inc. v Eristoff, 35 AD3d at 1126; Matter of Corvetti v Town of Lake Pleasant, 239 AD2d 841, 843 ). Here, we cannot say that the court abused its discretion.
Cardona, P.J., and Lahtinen, J., concur.
McCarthy, J. (concurring in part and ...