Supreme Court, Albany County, September 11, 2017

Prisoners' Legal Services of New York, Albany (Sophia Heller of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Shannan C. Krasnokutski of counsel), for respondent.

Petitioner, an inmate in the care and custody of the New York State Department of Corrections and Community Supervision (DOCCS), commenced this CPLR article 78 proceeding to challenge respondent's determination denying his Freedom of Information Law (hereinafter FOIL) request for video footage of a January 4, 2016 incident. He seeks the requested video footage and the award of attorneys' fees pursuant to Public Officers Law § 89 (4) (c) (i). Petitioner also submitted a motion for a poor person order, which is granted under CPLR 1101 (e).

Petitioner's FOIL request was denied on October 5, 2016. Petitioner appealed, which was denied on December 14, 2016. Respondent's grounds for denial were pursuant to Public Officers Law § 87 (2) (a) and Civil Rights Law § 50-a. The justification was that "the video was used to evaluate the performance of an officer toward continued employment," and also because "there is a substantial and realistic potential for this record to be used to harass or embarrass a [DOCCS] [*2]employee covered by § 50-a."

The petition argues that the requested video does not properly qualify as a personnel record, but even if it was, there is no demonstration that the video's disclosure could be used in an abusive manner against an officer. Respondent opposes the application, reiterating its positions noted above. Petitioner submits a reply.

In today's society it is becoming more common for interactions with law enforcement to be video recorded. This is particularly true in light of the recent national events, including in New York, regarding use of force by law enforcement. More departments and agencies are utilizing various video recording devices like body cams or handheld recorders to capture interactions with the public or wards. This has seamlessly blended into correctional facilities, where video surveillance is a necessity and handheld video recorders are now being used. The videos generated are often used to justify the actions of an officer, in the prosecution of an offense, and undoubtedly for{**59 Misc 3d at 454} evaluation of an officer's job performance for continued employment, promotion, discipline, or termination. Notwithstanding this, the court's review of the applicable common law finds a lack of cases involving video records in FOIL situations such as this.

FOIL is governed by article 6 of the Public Officers Law. Under this article, the legislative declaration is that "the public . . . should have access to the records of government in accordance with the provisions of this article" (Public Officers Law § 84). The declaration "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 565 [1986]). "To implement this purpose, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" (Capital Newspapers, 67 NY2d at 566; see Public Officers Law § 87 [2]). Such "[e]xemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" (Capital Newspapers, 67 NY2d at 566; see Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 79-80 [1984] [noting exemptions are to be "narrowly interpreted" so as "(t)o give the public maximum access to records of government"]).

Pertinently here, agencies may deny access to records or portions thereof that are "specifically exempted from disclosure by state or federal statute" (Public Officers Law § 87 [2] [a]). Under Civil Rights Law § 50-a (1),

"[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any . . . department of the state . . . or a department of correction of individuals employed as correction officers . . . shall be considered confidential and not subject to inspection or review without the express written consent of such . . . correction officer . . . except as may be mandated by lawful court order."

Respondent argues that the video of the incident was used in the evaluation of an officer(s) and is protected under Civil Rights Law § 50-a (1). The court disagrees and finds that the{**59 Misc 3d at 455} video recording is not a "personnel record" under the statute. The question of "whether a document qualifie[d] as a personnel record under Civil Rights Law § 50-a (1) depends upon its nature and its use in evaluating an officer's performance—not its physical location or its particular custodian" (Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26, 32 [1988]). Personnel records "contain[ ] personal, employment-related information about a public [*3]employee" (Prisoners' Legal Servs., 73 NY2d at 31).

Here, while the subject video recording was a medium used to evaluate the performance of the officer(s), this is coincidently the video's use and not exclusively its nature and use. The court finds the video recording to be a mixed use material, meaning it could be used for several purposes including that of an officer(s) evaluation. The video footage is not confidential and personal, but a video record of an event and incident that occurred at a correctional facility. It cannot be said to be a personnel record warranting protection from FOIL. To hold otherwise would allow every video recording to be held under such exemption, whether that be in a correctional facility such as an incident like this or on a police officer's body cam recording—all which could seemingly fall under Civil Rights Law § 50-a. Using this logic respondent could theoretically cloak any "matter material and necessary" merely by placing such video footage into a personnel file and using the video footage to evaluate the officer's performance. The court finds the video footage here which was used, in part, to evaluate an officer(s)' performance to be very different than that of documents pertaining to misconduct or rule violations by correction officers which were at issue in Prisoners' Legal Servs. Officer evaluation was not the nature and use of the video subject to the FOIL request.

As such, the remaining subdivisions of Civil Rights Law § 50-a do not apply. (See Prisoners' Legal Servs., 73 NY2d at 32-33.) It is further immaterial whether the video footage could be used "to degrade, embarrass, harass or impeach the integrity of the officer," as the video footage is not a personnel record or a confidential record. (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 158 [1999].) Further, the video footage that is sought just depicts the actual acts and conduct of individuals, not unsubstantiated allegations or complaints as in Prisoners' Legal Servs. (73 NY2d at 31.) If these acts or conduct depicted subsequently degrade, embarrass, or impeach{**59 Misc 3d at 456} the integrity of an officer, such would be due to the subjective fault of the actor(s).

In its discretion, the court declines to award reasonable attorneys' fees under Public Officers Law § 89 (4) (c) (i) as the agency had a reasonable basis for denying access given the novelty of the video recording issue. The court will reconsider counsel fees for the entire application if there is a failure to comply with this order.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby ordered and adjudged that the petition is granted, and disclosure of the subject video footage shall be made to petitioner within 30 days of service of notice of entry; and it is further ordered and adjudged that all other relief is denied; and it is further ordered that this court shall maintain continuing jurisdiction to ensure compliance and the possibility of further counsel fees.