Zachary W. Carter, Corporation Counsel, New York (Aaron M.
Bloom of counsel), for appellants.
York Civil Liberties Union Foundation, New York (Christopher
Dunn of counsel), for respondent.
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.
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,
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 ; 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 ).
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
, cert denied 486 U.S. 1056');">486 U.S. 1056 ). 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.
Matter of Short v Board of Mgrs. of Nassau County Med.
Ctr. (57 N.Y.2d 399, 401 ), 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
), 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). 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.
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.
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  ["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
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
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.