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In re New York Civil Liberties Union

Supreme Court of New York, First Department

March 30, 2017

In re New York Civil Liberties Union, Petitioner-Respondent,
v.
New York City Police Department, et al., Respondents-Appellants. The New York Times Company, Advance Publications, Inc., The Associated Press, Inc., Daily News L.P., Dow Jones & Company, Inc., Gannett Co., Inc., Hearst Corporation, Newsday LLC, News 12 Networks LLC and NYP Holdings, Inc., Amici Curiae.

          Zachary W. Carter, Corporation Counsel, New York (Aaron M. Bloom of counsel), for appellants.

          New York Civil Liberties Union Foundation, New York (Christopher Dunn of counsel), for respondent.

          Media Freedom & Information Access Clinic, Abrams Institute for Freedom of Expression, Yale Law School, New York (David A. Schulz of counsel), for The New York Times Company, Advance Publications, Inc., The Associated Press, Inc., Daily News L.P., Dow Jones & Company, Inc., Gannett Co., Inc., Hearst Corporation, Newsday LLC, News 12 Networks LLC and NYP Holdings, Inc., amici curiae.

          Friedman, J.P., Renwick, Richter, Moskowitz, Kapnick, JJ.

         Judgment, Supreme Court, New York County (Shlomo Hagler, J.), entered April 21, 2015, adhering to orders, same court (Geoffrey D. Wright, J.), entered October 16, 2012, July 29, 2014, and October 2, 2014, which, insofar as appealed from as limited by the briefs, granted, to a limited extent, the petition brought pursuant to CPLR article 78 seeking to compel respondents to disclose certain records pursuant to the Freedom of Information Law (FOIL), unanimously reversed, on the law, the petition denied, and the proceeding dismissed, without costs.

         Public Officers Law § 87(2)(a) provides that an agency "may deny access to records" that "are specifically exempted from disclosure by state... statute." The NYPD disciplinary decisions sought here fall within Civil Rights Law § 50-a, which makes confidential police "personnel records used to evaluate performance toward continued employment or promotion" (see Matter of Daily Gazette Co. v City of Schenectady, 93 N.Y.2d 145');">93 N.Y.2d 145 [1999]; Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 N.Y.2d 26');">73 N.Y.2d 26 [1988]).

         The fact that NYPD disciplinary trials are open to the public (38 RCNY 15-04[g]) does not remove the resulting decisions from the protective cloak of Civil Rights Law § 50-a (see Matter of Newsday, Inc. v Sise, 71 N.Y.2d 146, 153 [1987], cert denied 486 U.S. 1056');">486 U.S. 1056 [1988]). Whether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations (see Matter of Doe v City of Schenectady, 84 A.D.3d 1455, 1459 [3d Dept 2011]). Further, the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed, neither of which is disclosed at the public trial.

         In Matter of Short v Board of Mgrs. of Nassau County Med. Ctr. (57 N.Y.2d 399, 401 [1982]), the Court of Appeals held that where, as here, there is a "specific exemption from disclosure by State... statute, " an agency is not required to disclose records with identifying details redacted. The Court of Appeals subsequently reaffirmed this principle in Karlin v McMahon (96 N.Y.2d 842, 843 [2001]), where the agency responding to a FOIL request invoked the statutory exemption for documents that tend to identify the victim of a sex offense (Civil Rights § 50-b[1]). The Court of Appeals, citing Short, held that the agency was not obligated to provide the records "even though redaction might remove all details which tend to identify the victim" (Karlin, 96 N.Y.2d at 843 [internal quotation marks omitted]). In view of this controlling precedent, this Court cannot order respondents to disclose redacted versions of the disciplinary decisions. [1]

         Petitioner's reliance on Daily Gazette in support of its request for redacted decisions is unavailing. In that case, the Court of Appeals concluded that Civil Rights Law § 50-a barred the disclosure of records regarding disciplinary action taken against 18 police officers. Although the Court made brief reference to the hypothetical possibility of redaction, it did so in dicta, and did not address whether ordering the redaction and disclosure of documents protected by section 50-a could be reconciled with the holding in Short. Further, despite having mentioned redaction, the Court in Daily Gazette dismissed the article 78 FOIL petitions in their entirety, and did not order disclosure of redacted records. There is no merit to petitioner's contention that the holding in Short was abrogated by Daily Gazette. As noted earlier, Short was reaffirmed by Karlin, which came down two years after Daily Gazette, and we have no choice but to follow Short and Karlin.

         Respondents' previous disclosure of other redacted records did not waive their objections to redacting the disciplinary decisions at issue here (see Matter of City of New York v City Civil Serv. Commn., 60 N.Y.2d 436, 449 [1983] ["estoppel may not be applied to preclude a... municipal agency from discharging its statutory responsibility"]; Matter of Mazzone v New York State Dept. of Transp., 95 A.D.3d 1423, 1424-1425 [3d Dept 2012] [agency's right to claim FOIL exemption not waived where documents are inadvertently disclosed]).

         Our decision in Matter of New York Civ. Liberties Union v New York City Police Dept. (74 A.D.3d 632');">74 A.D.3d 632 [1st Dept 2010]) does not require a different result because in that case, unlike here, the FOIL request was limited to one narrow category of statistical data. Because the only issue presented in this appeal is whether respondents are required to disclose the redacted written disciplinary decisions themselves, we make no determination as to whether any information contained in those decisions can, consistent with section 50-a, be disclosed in another format or by a different method.

         We appreciate the various policy arguments made by petitioner and amici curiae, and agree that the public has a compelling interest in ensuring that respondents take effective steps to monitor and discipline police officers. Likewise, we recognize that the principles of confidentiality that underlie section 50-a may very well be protected by the redaction of identifying details from the disciplinary decisions sought here. However, as an intermediate appellate court, we cannot overrule the Court of Appeals' decisions in Short and Karlin, and are obligated to reverse based on this controlling precedent. The remedy requested by petitioner must come not from this Court, but from the legislature or the Court of Appeals.

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