City of Sherrill won't release report on former Police Chief James Hastings
CAITLIN TRAYNOR
March 2, 2011 Updated: July 28, 2017 2:08 a.m.
SHERRILL -- The City of Sherrill has refused a Freedom of Information Law request for documents outlining the disciplinary charges that formed a basis for the dismissal of Police Chief James Hastings.
In a FOIL request, sent to the city Feb. 1, the Oneida Daily Dispatch asked for documents containing the findings of Hastings' disciplinary hearing.
Based on the recommendations of Brian Doyle, the disciplinary hearing officer hired by the city to conduct the hearing, the Sherrill City Commission met at 10 p.m. Jan. 25 in executive session. The commission voted unanimously to fire Hastings, effective 12:01 a.m. Jan. 26.
Sherrill City Clerk Mike Holmes denied the Dispatch's FOIL request, citing New York Civil Rights Law section 50(a) and New York Public Officers Law sections 87(2)(a) and 87(2)(b).
New York Civil Rights Law section 50(a) provides protection for police officers, firefighters and correction officers and dictates that all personnel records "used to evaluate performance toward continued employment or promotion" are confidential and exempt from public disclosure.
New York Public Officers Law Section 87(2)(a) reinforces the civil rights law by saying agencies may deny access to records, or portions of records, that are "specifically exempted from disclosure by state or federal statute."
New York Public Officers Law Section 87(2)(b) allows for records to be denied from the public if disclosure would constitute an unwarranted invasion of personal privacy.
The New York State Committee on Open Government says that Sherrill is wrong to keep the records secret.
Camille Jobin-Davis, the assistant director of the COG, provided the Dispatch with three advisory opinions to include with its appeal.
Appeals to denied FOIL requests are directed to the Sherrill City Commission. The appeal was again denied by the city, in a letter dated Feb. 22, in which the commission cited the same sections of law.
In reference to New York Civil Rights Law section 50(a) and New York Public Officers Law section 87(2)(a), Sherrill City Manager Bob Comis, in the letter, says "this exemption applies as the record was created and utilized to evaluate the performance of James Hastings, in order to determine whether the city of Sherrill would continue his employment."
In reference to New York Public Officers Law section 87(2)(b), Comis said "this exemption applies as the record contains information about individuals other than James Hastings that, if released, would constitute an unwarranted invasion of the privacy of those individuals."
According to Bob Freeman, executive director of COG, New York Civil Rights Law section 50(a) does not apply to police officers who are no longer employed as such. Because that section of law does not apply, section 87(2)(a) of public officers law also does not apply.
"How could it be, at this point, that records would be used to evaluate performance or continued employment or promotion?" Freeman asked. "It's inconceivable."
He added that many courts have confirmed that the section of law does not apply to police officers who are no longer employed.
While New York Public Officers Law section 87(2)(b) allows agencies to withhold records in order to avoid an unwarranted invasion of privacy, courts have made it clear that public employees are given less privacy than others. Freeman said information about other individuals may be withheld, but the rest of the records need to be made available.
"Freedom of Information Law says that all records are available except those records or portions of records that fall within the exceptions that appear in the law," Freeman said. "Portions of records is the key phrase. There may be elements of the records that they have the ability to withhold but there are other aspects of the records which, from my perspective, clearly should be made public."
Because disciplinary charges were sustained as a result of a disciplinary hearing, Freeman said the charges should be made public.
"They represent a final determination about a public employee, which means disclosure would result in a permissible, not an unwarranted, invasion of privacy," he said.
Section 87(2)(g)(iii) of the public officers law specifically says that final agency policies and determinations must be made public.
When contacted Wednesday, Comis said the city has the right to deny the request and has an obligation to protect its residents.
"In this case, we feel our position is the correct step," he said. "We need to hold to that because in our opinion -- and what our legal council is saying -- that is the course of action we need to follow. We have responsibilities. We think that this is not information that can be publicly disclosed."
When asked why the city chose not to redact information about other individuals and release records on Hastings, Comis said redacting is generally decided by a court.
"The court tells us what to do and what should be redacted and then that becomes redacted," he said, saying the city doesn't prepare that document. "I think there might be something that the court would say, 'Yeah, you need to release that.' OK, tell us what it is."
According to Freeman, it is the responsibility of the agency that receives a FOIL request to redact information as it sees appropriate.
"When an agency receives the request, often there are instances in which within a single record or report there are portions that may justifiably be withheld," Freeman said. "And it's the agency's obligation to go through the record to figure out what portions can justifiably be redacted while disclosing the remainder."
Comis said the law is not clear enough for the city to determine what constitutes an unwarranted invasion of privacy and what doesn't.
"We're saying we don't know what that is," he said. "If that were clear I would do it, but it isn't."
Advisory opinions issued by the COG that provide a different interpretation of the law than Sherrill are simply differences of opinion, Comis said. The COG is "not in a position to interpret the law," he said; that is the role of the courts.
"I do respect their opinions," Comis said of the COG. "I may not agree with them but I do respect where they come from. I do respect that office, we do. But I also know we have responsibilities as well."
Freeman described Sherrill's interpretation as "a perverse view of the law." He stressed that Freedom of Information Law is mean to foster the right to access records.
"There is a case law from the state's highest court indicating that the purpose of the law is to enable the public to know how well or poorly public employees function," he said. "It's supposed to enable the public to learn about waste, abuse, etc."