Newsday, Inc. v. New York City Police Department , 133 A.D.2d 4 ( 1987 )

Order and judgment (one paper) of the Supreme Court, New York County (Shirley Fingerhood, J.), entered on or about May 8, 1986, which, in a proceeding under CPLR article 78 seeking various police reports pursuant to the Freedom of Information Law, denied disclosure of certain reports, affirmed, without costs.

The procedural history, facts and issues are fairly presented in the dissenting opinion.

In our view, affirmance is required by the decision of the Appellate Division, Fourth Department, in Matter of Gannett Co. v James (86 AD2d 744, lv denied 56 NY2d 502), which addressed essentially the same issue presented on this appeal, and whose conclusions were explicitly approved by the Court of Appeals in Matter of Capital Newspapers Div. v Burns (67 NY2d 562).

In Matter of Gannett (supra), the petitioners, publisher and certain reporters for a daily newspaper in the City of Rochester sought pursuant to the Freedom of Information Law (FOIL; Public Officers Law art 6) various categories of police records. These included complaints alleging harassment or use of force by police officers for a period of time, documents representing final disposition of civil service hearings concerning Police Department personnel with the names of the officers for a period of several years, documents reflecting final disposition of such hearings without the names of the officers, and copies of "Use of Force” forms filed by Rochester police officers for the years 1976-1979.

As to most of the records and documents requested, the Fourth Department, in Matter of Gannett (supra), in affirming the dismissal of the petition, concluded that the documents constituted "personnel records, used to evaluate performance toward continued employment or promotion” under Civil Rights Law § 50-a (1). In addition, the court noted that these categories of documents are also exempt from disclosure under Public Officers Law § 87 (2), under provisions excluding disclosure of records which might interfere with law enforcement investigations, and which might identify a confidential source or disclose confidential information.

Finally, addressing the request for "Use of Force” forms, the court said (supra, at 745-746): "Lastly, the 'Use of Force’ forms * * * while not personnel records used to evaluate performance, are nonetheless exempt from disclosure as intraagency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public or final agency policy or determinations (Public Officers Law, § 87, subd 2, par [g], cls i, ii, iii). This inter- or intra-agency exemption is important in that it permits police officers to express their views of events candidly and in writing.”

Significantly, as the dissenting opinion makes clear, the "Use of Force” forms at issue in Matter of Gannett (supra) are quite similar to the records as to which disclosure was denied in this proceeding, and raise essentially the same legal issue. As already observed, the Court of Appeals denied leave to appeal from the determination in Matter of Gannett.

In Matter of Capital Newspapers Div. v Burns (supra), the Court of Appeals, in concluding that Civil Rights Law § 50-a did not grant a blanket exemption from the Freedom of Information Law with regard to disclosure of police personnel records sought by a nonlitigating newspaper, addressed the contention of a party that Matter of Gannett (supra) had so held. Speaking of Matter of Gannett, the Court of Appeals said (supra, at 569): "The result reached by the court was clearly correct, however, for each of the requests purportedly exempted from disclosure by section 50-a in that case were also exempt under other FOIL provisions, namely Public Officers Law § 87 (2) (e), (g); § 89 (3) * * * Thus, to the extent that the court held that section 50-a created a blanket exemption insulating police records from FOIL disclosure, its holding was unnecessary because statutory exemptions contained in other sections, which are generally available to public officials, adequately provided protection for the police in that case and should provide similar protection against future unwarranted requests.”

We appreciate that in this quoted comment the Court of Appeals was focusing primarily on that aspect of Matter of Gannett (supra) that had excluded from disclosure under FOIL certain documents on the basis of Civil Rights Law § 50-a. However, coupled with the circumstance that the Court of Appeals had denied leave to appeal from a decision which denied a request for records raising substantially the same issue as is presented in this proceeding, which separately has little precedential value, the explicit statement of the Court of Appeals in Capital Newspapers (supra) that the result reached in Matter of Gannett was correct, seems to us controlling on the central issue presented in this case. Concur—Sandler, J. P., Milonas and Rosenberger, JJ.