New York City’s Civilian Complaint Review Board (CCRB) – the independent agency charged with investigating allegations of misconduct by the New York City Police Department (NYPD) – apparently thinks all of its records are completely exempt from disclosure through requests under Freedom of Information Law (FOIL).
Fortunately for advocates of open government, they are wrong, even on the cases they routinely cite to support blanket denials of request for records.
Earlier this year, I requested from the CCRB, “All records (including attachments) related to any and all complaints, substantiated or otherwise, of the NYPD and/or any agent(s) of the NYPD, destroying video evidence of police misconduct.”
The CCRB denied my request, arguing that agencies are permitted to deny access to records when they “are specifically exempted from disclosure by state or federal statute,” (Public Officers Law § 87(2)(a)), that personnel records “used to evaluate performance toward continued employment or promotion” are specifically exempted from disclosure by Civil Rights Law § 50-a, and that all CCRB records are personnel records, and thus exempted from disclosure, citing Telesford v. Patterson.
The denial further states that, “there is no way to redact the files in a way that will disassociate allegations against a particular officer given the nature of your request,” citing Daily Gazette Co. v. City of Schenectady.
This claim is, of course, absurd. It is completely contrary to the spirit of FOIL law, and it begs the question of why anyone in the Records Access Office for the CCRB even has a job when that job could be more efficiently performed by a rubber stamp.
But putting that aside, the CCRB appears to be willfully misrepresenting the cases it is citing in how they interpret the application of redactions, Civil Right Law § 50-a, and Public Officers Law § 87(2)(a).
As I said in my appeal, the personnel records exemption would not be triggered if the CCRB simply redacted the names and identifying information on the records.
Telesford v. Paterson, clearly states that personnel records are exempt under Civil Rights Law § 50-a “to prevent harassment, embarrassment, and fodder for cross examination of an officer.”
If information identifying individual officers in the records was redacted, the records would not trigger the purpose of the exemption because without identifying information, the records would contain no information enabling harassment, embarrassment, or fodder for cross examination of an individual officer.
And the citation of Daily Gazette Co. v. City of Shenectady is frankly baffling.
The decision repeatedly states that the purpose of the exemption is to prevent “harassment or reprisals,” which would obviously not be triggered if the names and identifying information were redacted.
It even goes so far as to say, “The needs to prevent oppressive use of police personnel records ‘do not offset the benefits of assuring the availability to the public of the performance evaluation of its servants,” and states that the legislative intent of CRL 50-a “could be attained…through redaction by the agency having custody of the records.”
It would be hard to write a better argument for disclosing the records I requested.
Additionally, Daily Gazette Co. v. City of New York highlights that the CCRB’s claim that these records are “specifically exempted from disclosure” without substantiation is insufficient:
In the case of a claim that disclosure is “specifically exempted from disclosure by state statute, by reason of Civil Rights Law § 50-a…the agency must demonstrate a substantial and realistic potential of the requested material for the abusive use against the officer.
There would obviously be none if the names and identifying information were redacted.
My original request clearly stated that I understood some portions of records responsive to my request may be exempt from disclosure and that such records should be produced with the exempt material redacted.
Still, the CCRB denied my appeal, restating its belief that all personnel files are exempt from disclosure and CCRB records are personnel files and thus exempt, inexplicably citing Capital Newspapers v. Burns,
In Capital Newspaper v. Burns the court granted the release of redacted records, repeatedly stating that personnel records are exempt under Civil Rights Law § 50-a only“to prevent harassment, embarrassment, and fodder for cross examination of an officer.”
In denying my appeal, the CCRB also stated that “state law authorizes redaction only as a means to cure an unwarranted invasion of privacy, not to prevent disclosure of records specifically exempted from disclosure,” again, completely inexplicably, citing Short v. Board of Managers.
The decision in Short v. Board of Managers is one paragraph long and includes no such thing. In fact, the court orders the release of the records, stating that exemption is:
Inapplicable in cases such as this, where a request for access to medical records is made under the Freedom of Information Law, identifying details are deleted, and there is no possibility that the identity of the patients will be known.
Again, it would be hard to write a better argument for why the CCRB should produce the records I requested.
It is as if the CCRB does not read the case law it cites, or hopes that those to whom it is denying access to public records will not.
Either way, it is completely contrary to the spirit of FOIL law, and the CCRB has been made well aware of it.
The court pointed it out in no uncertain terms in the most recent, high profile Petition against the CCRB for denial of records – those concerning NYPD Officer Daniel Pantaleo, in Luongo v. CCRB.
In its decision, the court refutes every claim the CCRB makes to exemption in my case and so many others.
On CCRB records being personnel records, it states, “The First Department has not held that CCRB records…are ‘personnel records’ under CRL 50-a. Neither has the Court of Appeals.”
On personnel records being exempt, it quotes Daily Gazette in stating that, “nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of [CRL 50-a] – to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer.”
And on redactions, it quotes Daily Gazette in stating that, “Disclosure for uses that would respect the legislative intent of CRL 50-a ‘could be attained … through redaction by the agency having custody of the records.” (emphasis mine)
Again, Daily Gazette is the case that the CCRB cited in the denial of my FOIL, in which it argued that redaction could not disassociate the records in such a way as to respect the legislative intent of CRL 50-a.
It seems to me the CCRB is willfully ignoring repeated court decision ordering them to release records under FOIL, and grossly misrepresenting those decision in denying people access to public records.
I’m confident a judge will agree, and will seek judicial review of the denial of my appeal by bringing an Article 78 of the New York Civil Practice Law and rules, and will update you all when I do.
Also published on Medium.