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Applying the confidentiality provisions of Civil Rights Law §50-a

By Harvey Randall, Esq.

Applying the confidentiality provisions of Civil Rights Law §50-a
Matter of Crowe v Kelly, 2007 NY Slip Op 02603, decided on March 27, 2007, Appellate Division, First Department

Kieran Crowe, a New York City police lieutenant, was served with a notice of discipline setting out disciplinary charges and specifications based on allegations made by two of the sergeants he supervised. He entered pleas of not guilty to these charges and invoked his right to a hearing.

Crowe asked for ?copies of specified confidential documents? concerning the two sergeants? alleged misconduct unrelated to the disciplinary charges served on Crowe. When the Department refused to provide Crowe with this information, he asked Supreme Court to issue an order directing the Department to provide him with the records. Following an in camera[1] review of these records by the court, the Department was directed to produce certain records from the sergeants? disciplinary files for use at Crowe?s administrative hearing.

The Appellate Division vacated the lower court?s order. It said that the records ??fell within the ambit of the confidentiality provisions of Civil Rights Law §50-a.?
According to the ruling, in order to overcome the confidentiality requirements applicable to the personnel records of police officers, firefighters and certain other civil servants, satisfying each the following requirements is critical:

1. The court to which such application for disclosure is made must conduct a hearing on the application, giving all interested parties an opportunity to be heard.

2. The party requesting disclosure has the initial burden of making ?a clear showing of facts sufficient to warrant the judge to request records for review.?

At the conclusion of the hearing, if the requisite showing is made, the court can order that the records be sealed and delivered to it.

After conducting an in camera inspection, the court must make a finding that such records, or portions thereof, are ?relevant and material? to the underlying action before it can release those records to the person requesting them.

The Appellate Division ruled that the documents in question have no direct bearing on any issue in Crowe?s disciplinary hearing except with respect to the credibility of the sergeants. The sole use of the sergeants? disciplinary records would be as extrinsic evidence to contradict or refute any false or evasive testimony the sergeants may give when questioned on cross-examination regarding these prior acts of misconduct to impeach their credibility. This, said the court, falls squarely within the collateral evidence rule. But, noted the Appellate Division, Crowe, ?as the sergeants? supervisor, already has sufficient knowledge of the facts surrounding the prior acts of misconduct that can be adduced during cross-examination.?

Under these circumstances, the Appellate Division ruled that the ?protections afforded to disciplinary records should not be set aside? and vacated the order issued by Supreme Court.

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[1] Typically, an in camera review of documents is conducted by the judge in private rather than in open court.

Full post as published by New York Public Personnel Law on January 11, 2008 (boomark / email).