# Daily Gazette Co. v. City of Schenectady

> Appellate Division of the Supreme Court of the State of New York · June 4, 1998 · 242 A.D.2d 164

URL: https://www.frixlaw.com/law-library/cases/6016501

## Case

- **Full name:** In the Matter of Daily Gazette Company v. City of Schenectady
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** June 4, 1998
- **Citations:** 242 A.D.2d 164; 673 N.Y.S.2d 783; 26 Media L. Rep. (BNA) 2171; 1998 N.Y. App. Div. LEXIS 6454
- **Precedential status:** Published
- **Opinion:** Dissent by Peters
- **Judges:** Peters, Spain
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

Peters, J. (dissenting).
Since the majority’s authorization for disclosure appears solely premised on the “context” in which the request is made and whether, emanating from that context, there is a threat of litigation or potential litigation, we believe that it has misconstrued Matter of Prisoners’ Legal Servs. v New York State Dept, of Correctional Servs. ( 73 NY2d 26 ) and incorrectly ordered disclosure.
Throughout the Court of Appeals decision in Prisoners’ Legal Servs., it is emphasized that “[documents pertaining to misconduct or rules violations * * * are the very sort of record which, the legislative history reveals, was intended to be kept confidential” (id., at 31). In discussing the underpinnings of this legislation, the Court noted the litigation/nonlitigation distinction and explained that “records may be protected from disclosure under [Civil Rights Law §] 50-a, even though not sought for actual litigation” (id., at 32). If pending litigation were necessary before receiving statutory protection, the Court countered that “the statute could be circumvented by the simple expedient of making FOIL requests for the records first and bringing the lawsuit later. The Legislature could not have intended to enact a statute that could so easily be rendered ineffectual” (id., at 33).
Finding later interpretation of its decision in Matter of Capital Newspapers Div. v Burns ( 67 NY2d 562 ) misguided, the Court of Appeals clarified that the request made therein by a newspaper for FOIL access to attendance and sick leave records of correction officers was permitted because those materials “did not constitute the kind of personnel records protected under section 50-a” (Matter of Prisoners’ Legal Servs. v New *171 York State Dept, of Correctional Servs., supra, at 33), not because statutory protection was limited to pending litigation. It was because these records had no remote or even potential use in litigation for the purposes of harassment or embarrassment of the correction officers at issue (see, Matter of Capital Newspapers Div. v Burns, supra, at 568-569) that disclosure was permitted.
For these reasons, we disagree with the majority’s construction of Prisoners’ Legal Servs. We find that the Court of Appeals, in construing Civil Rights Law § 50-a (1), held that the statute included, within its scope, all sensitive personnel documents that could have potential use in litigation for the purpose of harassment or embarrassment, regardless of the context in which the request was made. To conclude that the documents sought here fall outside of that scope based solely upon the litigation/nonlitigation context in which the request was made lifts the cloak of secrecy afforded by statute and usurps legislative function.
In light of the policy enunciated by the Legislature in enacting this statute, coupled with the Court of Appeals interpretation thereof, we are constrained to conclude that disclosure is prohibited. Accordingly, we would affirm the judgment of Supreme Court which denied disclosure of the requested materials under FOIL pursuant to Civil Rights Law § 50-a (see, Public Officers Law § 87 [2] [a]).
Mercure, J. P., and White, J., concur with Spain, J.; Peters and Carpinello, JJ., dissent in a separate opinion by Peters, J.
Ordered that the judgment is modified, on the law, with one bill of costs to petitioners, by partially granting the petition and directing respondents to release to petitioners the names of the police officers involved in the incident of May 11, 1997 and the respective discipline imposed; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6016501. Public record. Not legal advice.