Supreme Court, Orange County, April 7, 2021

Law Office of Kenneth Puig, Newburgh, for petitioners.

Alex Smith, Corporation Counsel, Middletown, for respondents.

In a proceeding, pursuant to CPLR article 78, to challenge the refusal to provide certain information demanded under the Public Officers Law, it is hereby ordered, adjudged and decreed that the petition is granted as set forth herein.

The petitioner commenced this proceeding to challenge the refusal of the respondents to provide certain information concerning the disciplinary records of police officers demanded under the Freedom of Information Law (hereinafter FOIL) codified in article 6 of the Public Officers Law.

The petitioner argues, inter alia, that the repeal of Civil Rights Law § 50-a, which previously shielded such information against disclosure, warrants release of the same.

The respondents argue, inter alia, that the repeal of Civil Rights Law § 50-a is to be applied prospectively only.

The petition is granted as set forth herein.

By letter dated July 11, 2020, the petitioner made a demand under FOIL for the following information:

1. "Copies of the disciplinary records of all City of Middletown Police Officers who have been disciplined."

2. A copy of the City of Middletown police standard operating procedures, manuals, training materials, guidelines, directives{**71 Misc 3d at 1100}, and rules and regulations concerning driving while intoxicated and arrests involving domestic abuse.^[FN*] (Petition, exhibit A.)

By letter dated July 15, 2020, the request was denied by the respondent John Naumchik, the City Clerk of the City of Middletown.

Naumchik stated that the language of the first demand (supra) was not "reasonably descriptive of the records sought and is unreasonably overbroad. Middletown has been incorporated as a city since the 1880's [sic]."

By letter dated August 11, 2020, the petitioner appealed the denial of his FOIL request to the respondent Joseph DeStefano, the Mayor of the City of Middletown (petition, exhibit C).

Concerning his first demand, the petitioner noted that he was not seeking the records of all officers throughout history, but only those currently on active duty.

By decision dated August 17, 2020, DeStefano denied the appeal (petition, exhibit D).

DeStefano found that the demands, as written, were not reasonably descriptive and were unreasonably overbroad. Thus, he found, the denial of the claims was proper and not in bad [*2]faith.

Indeed, DeStefano found, although, on appeal, the petitioner had narrowed his demands to only those police officers on active duty, no such limitation was set forth in his demand.

Thus, DeStefano asserted, the petitioner should have submitted a new, clarified, FOIL demand to Naumchik, not filed an appeal.

Thereafter, the petitioner apparently filed an amended FOIL demand. (The demand was not made part of the record.)

By letter dated August 19, 2020, Naumchik granted in part and denied in part the petitioner's amended requests for the information, supra (petition, exhibit E).

Concerning disciplinary records, etc., Naumchik noted that it was not clear whether the repeal of Civil Rights Law § 50-a was to be applied retroactively. If not, the FOIL demand would be denied. Naumchik noted that legal analysis was being conducted.

By letter dated August 21, 2020, Naumchik appended an opinion letter from Alex Smith, Esq., Corporation Counsel for{**71 Misc 3d at 1101} the City of Middletown, concluding that the repeal of Civil Rights Law § 50-a was not to be applied retroactively. Thus, Smith opined, disciplinary records created prior to the June 12, 2020 effective date of the repeal remained exempt from disclosure.

By letter dated September 11, 2020, the petitioner filed a second appeal with DeStefano (petition, exhibit G).

The petitioner argued that there was no basis to hold that the repeal of Civil Rights Law § 50-a was prospective only. Indeed, he noted, in a recent decision from the federal District Court, Eastern District of New York, Judge Failla found that the repeal was to be applied retroactively.

Further, he noted, since the repeal went into effect, numerous other police departments had provided such records, including the New York City Police Department.

By letter dated September 29, 2020, DeStefano denied the petitioner's second appeal, finding no basis to conclude that the repeal of Civil Rights Law § 50-a was to be applied retroactively.

The petitioner commenced the proceeding at bar to review the denial of his FOIL request for disciplinary records. The petitioner argues that the repeal of Civil Rights Law § 50-a should be applied retroactively. Further, he argues, the respondents' denial of his demand was in bad faith; and they should be compelled to pay him reasonable attorney's fees pursuant to Public Officers Law § 89.

In opposition, the respondents submit an affirmation from Alex Smith.

Smith argues that, applying rules of statutory construction, the repeal of Civil Rights Law § 50-a should be applied prospectively only.

Indeed, he asserts, the issue of retroactivity should be decided by the legislature, not the courts.

Smith notes that the respondents did not supply the petitioner with disciplinary records created after June 12, 2020, at the time of his initial requests because no such records existed.

He notes that a search will be made for the same, and scrutinized under the rules otherwise applicable to police disciplinary rules under the Public Officers Law.

Finally, he notes, although there was a case from Supreme Court, Schenectady County (Powers, J.), which found the repeal{**71 Misc 3d at 1102} of Civil Rights Law § 50-a retroactive, the decision did not [*3]provide any guidance as to how that conclusion was reached (exhibit 1).

In general, FOIL, codified in the Public Officers Law, provides that government records are presumptively open for public inspection unless specifically exempt from disclosure. (Matter of Karlin v McMahon, 96 NY2d 842 [2001]; Matter of Hughes Hubbard & Reed, LLP v Civilian Complaint Review Bd., 171 AD3d 1064 [2d Dept 2019]; Matter of Crowe v Guccione, 171 AD3d 1170 [2d Dept 2019].)

In general, an agency may deny access to records or portions thereof that

"(a) are specifically exempted from disclosure by state or federal statute;

"(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;

"(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

"(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;

"(e) are compiled for law enforcement purposes and which, if disclosed, would:

"i. interfere with law enforcement investigations or judicial proceedings;

"ii. deprive a person of a right to a fair trial or impartial adjudication;

"iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or

"iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;

"(f) if disclosed could endanger the life or safety of any person" (Public Officers Law § 87 [2]; Matter of Hughes Hubbard & Reed, LLP v Civilian Complaint Review Bd., 171 AD3d 1064 [2d Dept 2019];{**71 Misc 3d at 1103} Matter of Crowe v Guccione, 171 AD3d 1170 [2d Dept 2019]).

Prior to June 12, 2020, one such specific statutory exemption was found in Civil Rights Law § 50-a, which provided in relevant part that all personnel records of police officers used to evaluate performance toward continued employment or promotion "shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order." (Former Civil Rights Law § 50-a [1].)

Effective June 12, 2020, Civil Rights Law § 50-a was repealed (L 2020, ch 96, § 1 [eff June 12, 2020]).

The sponsor's memorandum concerning the bill which resulted in the repeal of Civil Rights Law § 50-a, and the related amendments to the Public Officers Law, described the justification for the same as follows.

"[The initial] exemption was adopted in 1976 by the Legislature in order to prevent criminal defense attorneys from using these records in cross-examinations of police witnesses during criminal prosecutions. However, current law, as narrowly interpreted by the Court of Appeals, prevents access to both the records of the disciplinary proceedings themselves and the recommendations or outcomes of those proceedings.

"According to the 2014 annual report by the State Committee on Open Government to the Governor and the State Legislature, 'this narrow exemption has been expanded in the courts to allow police departments to withhold from the public virtually any record that contains any information that could conceivably be used to evaluate the performance of a police officer.'

"Due to the interpretation of § 50-a, records of complaints or findings of law enforcement misconduct that have not resulted in criminal charges against an officer are almost entirely inaccessible to the public or to victims of police brutality, excessive use of force, or other misconduct. The State Committee on Open Government has stated that § 50-a 'creates a legal shield that prohibits disclosure, even when it is known that misconduct has occurred.' FOIL's public policy goals, which are to make government agencies and their employees accountable{**71 Misc 3d at 1104} to the public, are thus undermined. Police-involved killings by law enforcement officials who have had histories of misconduct complaints, and in some cases recommendations of departmental charges, have increased the need to make these records more accessible.

"FOIL already provides that agencies may redact or withhold information whose disclosure would constitute an unwarranted invasion of privacy. Recent changes to the Civil Service Law have created additional, non-discretionary protections against the release of certain sensitive information such as contact information. Furthermore, this bill adds additional safeguards in the FOIL statute. Finally, courts have the ability to protect against improper cross-examination and determine if police records are admissible in a trial, without the denial of public access to information regarding police activity created by § 50-a. The broad prohibition on disclosure created by § 50-a is therefore unnecessary, and can be repealed as contrary to public policy.

"Repeal of § 50-a will help the public regain trust that law enforcement officers and agencies may be held accountable for misconduct." (Sponsor's Mem in Support of 2020 NY Senate Bill S8496, enacted as L 2020, ch 96.)

Specific to the case at bar, the Public Officers Law provides as follows to "law enforcement disciplinary records."

"[A] law enforcement agency shall redact the following information from such records prior to disclosing such records under this article:

"(a) items involving the medical history of a person employed by a law enforcement agency . . . not including records obtained during the course of an agency's investigation of such person's misconduct that are relevant to the disposition of such investigation;

"(b) the home addresses, personal telephone numbers, personal cell phone numbers, personal e-mail addresses of a person employed by a law enforcement agency . . . , or a family member of such a person, a complainant or any other person named in a law enforcement disciplinary record, except where required pursuant to article fourteen of the{**71 Misc 3d at 1105} civil service law, or in accordance with subdivision four of section two hundred eight of the civil service law, or as otherwise required by law. . . .

"(c) any social security numbers; or

"(d) disclosure of the use of an employee assistance program, mental health service, or substance abuse assistance service by a person employed by a law enforcement agency . . . unless such use is mandated by a law enforcement disciplinary proceeding that may otherwise be disclosed pursuant to this article.

"2-c. For records that constitute 'law enforcement disciplinary records' as defined in subdivision six of section eighty-six of this article, a law enforcement agency may redact records pertaining to technical infractions as defined in subdivision nine of section eighty-six of this article prior to disclosing such records under this article." (Public Officers Law § 89 [2-b], [2-c].)

Public Officers Law § 86 (6) defines "[l]aw enforcement disciplinary records" to mean:

"any record created in furtherance of a law enforcement disciplinary proceeding, including, but not limited to:

"(a) the complaints, allegations, and charges against an employee;

"(b) the name of the employee complained of or charged;

"(c) the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing;

"(d) the disposition of any disciplinary proceeding; and

"(e) the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee."

"Law enforcement disciplinary proceeding" is defined to mean "the commencement of any investigation and any subsequent hearing or disciplinary action conducted by a law [*6]enforcement agency." (Public Officers Law § 86 [7].)

A court may award a reasonable attorney's fee and other litigation costs to a petitioner in a proceeding to review the denial{**71 Misc 3d at 1106} of a FOIL request where the petitioner has "substantially prevailed" in the proceeding, and (i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time. (Public Officers Law § 89 [4] [c]; Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 931 [2d Dept 2016].) The award of attorney's fees is intended to create a clear deterrent to unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL. (Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929 [2d Dept 2016].) Specifically, in enacting FOIL, the legislature declared that "government is the public's business" and expressly found that "a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions." (Public Officers Law § 84; Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929 [2d Dept 2016].)

Here, a threshold issue is whether the repeal of Civil Rights Law § 50-a is to be given prospective application only. That is, whether the repeal is to be applied to disciplinary records created on or after June 12, 2020, only. The court finds that it is not so limited.

It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the legislature. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].) The clearest indicator of legislative intent is the statutory text, and the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed. If they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction, and courts have no right to add to or take away from that meaning. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]; Tompkins v Hunter, 149 NY 117, 122-123 [1896].)

The date that legislation is to take effect is a separate question from whether the statute should apply to claims and rights then in existence. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].) While the fact that a statute is to take effect immediately evinces a sense of urgency, the meaning of the phrase is equivocal in an analysis of retroactivity.{**71 Misc 3d at 1107} (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].) Of course, the legislature may explicitly designate the prospective or retroactive application of a statute. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

It is a fundamental canon of statutory construction that retroactive operation is not favored by courts, and statutes will not be given such construction unless the language expressly or by necessary implication requires it. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

However, an equally settled maxim is that "remedial" legislation, or statutes governing procedural matters, should be applied retroactively in order to effectuate its beneficial purpose. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]; Marrero v Crystal Nails, 114 AD3d 101 [2d Dept 2013]; McKinney's Cons Laws of NY, Statutes § 54 ["Remedial statutes constitute an exception to the general rule that statutes are not to be [*7]given a retroactive operation, but only to the extent that they do not impair vested rights"].)

These axioms are helpful guideposts, but the reach of the statute ultimately becomes a matter of judgment made upon review of the legislative goal. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]; Marrero v Crystal Nails, 114 AD3d 101 [2d Dept 2013].)

The factors to consider include whether the legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; whether the statute was designed to rewrite an unintended judicial interpretation; and whether the enactment itself reaffirms a legislative judgment about what the law in question should be. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]; Marrero v Crystal Nails, 114 AD3d 101 [2d Dept 2013].)

Such construction principles are navigational tools to discern legislative intent. Classifying a statute as "remedial" does not automatically overcome the strong presumption of prospectivity because the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].) General principles may serve as guides in the search for the intention of the legislature in a particular case, but only where better guides are not available. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

Finally, it is noted, statements made by legislators during floor debates may be accorded some weight in the absence of{**71 Misc 3d at 1108} more definitive manifestations of legislative purpose, but should be cautiously used. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

Here, there is no new statutory language to interpret. Rather, the statute was merely repealed.

Further, the legislature made no express statement in the repeal itself, or in the limited legislative history concerning the same, as to whether the repeal was to be applied retroactively.

Nor has the court found any controlling case law deciding the issue.

Thus, the legislative history of the repeal must be considered.

Here, the limited legislative history (the sponsor's memorandum, supra) indicates that the repeal was remedial in nature, and should be applied retroactively.

First, the sponsor's memorandum noted, the judicial interpretation of the statute had been too narrow and, as a result, the application of Civil Rights Law § 50-a had strayed from its intended purpose, to wit: to prevent criminal defense attorneys from using the records during cross-examinations of police witnesses.

As a further consequence, the sponsor's memorandum noted, relevant information about police officers had been almost entirely inaccessible to the public, and the case law had created a "legal shield" that prohibited disclosure even when it is known that misconduct has occurred. This, the sponsor's memorandum noted, was contrary to, and undermined, FOIL's public policy goals.

Moreover, the sponsor's memorandum found, police-involved killings by law enforcement officials who have histories of misconduct complaints, and in some cases recommendations of departmental charges, had increased the need to make the records more accessible. Indeed, the sponsor's memorandum noted, the repeal of section 50-a would help the public regain trust that law enforcement officers and agencies may be held accountable for misconduct.

Finally, the sponsor's memorandum noted, FOIL otherwise already provided law enforcement officers [*8]with sufficient protections against things such as the release of certain sensitive information.

Here, given all of the above, the court finds that the repeal of Civil Rights Law § 50-a should be applied retroactively to reach all disciplinary reports, not just those created on or after June 12, 2020.{**71 Misc 3d at 1109}

Thus, the respondents are to consider the petitioner's application for disciplinary records in light of the same.

Given the lack of clarity and guidance concerning the retroactive application of Civil Rights Law § 50-a, the court does not find that an award of attorney's fees to the petitioner is warranted pursuant to Public Officers Law § 89.

Accordingly, and for the reasons cited herein, it is hereby ordered, adjudged and decreed that the petition is granted to the extent set forth herein and otherwise denied.