                          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
                              -2-                520623

[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
                              -3-                520623

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
                              -4-                  520623

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
