State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 22, 2015 520623 

________________________________

In the Matter of HEARST

CORPORATION et al., 

Appellants,

v

MEMORANDUM AND ORDER

NEW YORK STATE POLICE,

Respondent,

et al.,

Respondent.

________________________________

Calendar Date: September 17, 2015

Before: Peters, P.J., McCarthy, Garry and Rose, JJ.

__________

Jonathan Donnellan, The Hearst Corporation, New York City,

for appellants.

Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.

Lang of counsel), for respondent.

__________

McCarthy, J.

Appeal from a judgment of the Supreme Court (Zwack, J.),

entered May 9, 2014 in Albany County, which dismissed

petitioners' application, in a proceeding pursuant to CPLR

article 78, to review a determination of respondent New York

State Police denying petitioners' Freedom of Information Law

request.

Petitioner Hearst Corporation owns and publishes the Albany

Times Union and petitioner Brendon Lyons is a professional

journalist employed thereby. Lyons submitted a request pursuant

to the Freedom of Information Law (Public Officers Law art 6
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[hereinafter FOIL]) for the disclosure of all records relating to

an alleged hit-and-run incident committed by respondent Brian T.

Beardsley, a State Trooper who was off duty. Respondent New York

State Police (hereinafter respondent) denied the request and,

following an unsuccessful administrative appeal, petitioners

commenced this CPLR article 78 proceeding seeking a judgment

directing respondent to turn over the requested records, as well

as costs and counsel fees. Petitioners initially named only

respondent, and Supreme Court granted respondent's motion to

dismiss the petition on the grounds that petitioners had failed

to name Beardsley as a necessary party and the records were

exempt from disclosure pursuant to Civil Rights Law § 50-a (1) as

"personnel records." This Court reversed, finding that

respondent had not established entitlement to the exemption at

that procedural stage, and further finding that, although

Beardsley was a necessary party, dismissal was not required as

his joinder could be directed by court order (109 AD3d 32, 36-37

[2013]).

On remittal, petitioners, by amended notice and petition,

joined Beardsley. Supreme Court held a hearing, at which

Beardsley was in attendance, though he did not formally appear. 

Respondent identified, by affidavit of its FOIL officer,

categories of records pertaining to the alleged incident, all of

which, according to him, were collected or produced in an

internal investigation pursuant to 9 NYCRR part 479. Supreme

Court did not review such records in camera. The court

thereafter found that all of the identified records were exempt

from disclosure pursuant to Civil Rights Law § 50-a (1) and

dismissed the petition on that basis. Petitioners now appeal. 

"[P]ursuant to FOIL's general mission, which is to promote

open government and public accountability, a government agency

must make its records available to the public unless an exemption

expressly provides otherwise" (Matter of Columbia-Greene Beauty

Sch., Inc. v City of Albany, 121 AD3d 1369, 1370 [2014]; see

Public Officers Law §§ 84, 87 [2]). "[E]xemptions are to be

narrowly interpreted so that the public is granted maximum access

to the records of government" (Matter of Data Tree, LLC v

Romaine, 9 NY3d 454, 462 [2007]) and, thus, the party opposing

disclosure bears the burden of establishing that the requested
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information "fall[s] squarely within a statutory exemption"

(Matter of Capital Newspapers Div. of Hearst Corp. v City of

Albany, 15 NY3d 759, 761 [2010]; see Public Officers Law § 89 [4]

[b]). As is relevant here, Civil Rights Law § 50-a (1) exempts

from disclosure the "personnel records" of police officers that

are "used to evaluate performance toward continued employment or

promotion."

Initially, we reject petitioners' contention that

information created or collected pursuant to a misconduct

investigation is not protected by Civil Rights Law § 50-a (1)

unless respondent can establish that it was thereafter actually

relied on in a decision-making process related to the relevant

officer's continued employment or promotion. Proof that

information was generated for the purpose of assessing an

employee's alleged misconduct brings that information within the

protection of Civil Rights Law § 50-a (1) (see Matter of Cook v

Nassau County Police Dept., 110 AD3d 718, 720 [2013]; Matter of

Carnevale v City of Albany, 68 AD3d 1290, 1293 [2009]; Matter of

Argentieri v Goord, 25 AD3d 830, 832 [2006]). This does not end

our inquiry, however, because uncontested evidence established

that respondent's investigation of Beardsley continued after he

had resigned as an employee of respondent. We agree with

petitioners that police departments who investigate persons who

are no longer their employees are not conducting investigations

of "personnel" within the meaning of Civil Rights Law § 50-a (1). 

The plain meaning of the word personnel identifies individuals

with some current employment relationship with an organization. 

This meaning of personnel is further confirmed by the statute, as

individuals who are not current employees cannot be considered

for either "continued employment or promotion" (Civil Rights Law

§ 50-a [1]). Accordingly, Supreme Court erred in finding that

respondent met its burden of establishing that the materials

resulting from its investigation after Beardsley had resigned

were for the purpose of assessing his continued employment or

promotion and that, as a result, Civil Rights Law § 50-a (1)

provided confidentiality to such materials.

Having concluded that Supreme Court erred in dismissing the

petition upon a finding that all requested information fell

within Civil Rights Law § 50-a (1), we are constrained from
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addressing respondent's alternative arguments for affirmance that

additional exceptions to FOIL respectively apply to some or all

of the requested information. We are unable to determine whether

withheld materials fall within the scope of those asserted

exemptions given that those materials are not within the record

for our in camera review. Accordingly, we remit for

consideration of such arguments after an in camera review of the

responsive materials (see Matter of Xerox Corp. v Town of

Webster, 65 NY2d 131, 133 [1985]; Matter of Rose v Albany County

Dist. Attorney's Off., 111 AD3d 1123, 1126 [2013]; Matter of DJL

Rest. Corp. v Department of Bldgs. of City of N.Y., 273 AD2d 167,

169 [2000]). Petitioners' remaining arguments are either

academic, without merit or premature.

Peters, P.J., Garry and Rose, JJ., concur.

ORDERED that the judgment is modified, on the law, without

costs, by reversing so much thereof as found that materials

created or acquired after respondent Brian T. Beardsley's

resignation were exempt pursuant to Civil Rights Law § 50-a (1);

matter remitted to the Supreme Court for further proceedings not

inconsistent with this Court's decision; and, as so modified,

affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court