Municipalities in New York State should be ready to respond to an increased amount of Freedom of Information Law (“FOIL”) requests as a result of a bill just passed in both houses of the New York State Legislature and signed by the Governor. On June 11, 2020, a bill (S8496) was sent to the Governor’s desk which both repeals an important portion of the state’s Civil Rights Law and amends multiple sections of the Public Officers Law so as to now allow the public to have access to the disciplinary records of law enforcement personnel.

Historically, FOIL has been the way the public seeks access to public records kept by state, county, municipal, and certain other public entities and agencies. While the very nature of FOIL is synonymous with a strong presumption of transparency and disclosure, there were always certain exemptions that a governmental agency could invoke to prevent disclosure of all or portions of certain records as long as there was a reasonable basis to do so. One of the exemptions to disclosure, as stated in POL §87(2)(a), applies to records that are “specifically exempted from disclosure by state or federal statute.” In relevant part, Civil Rights Law §50-a (1) states law enforcement personnel records are considered confidential and could not be released except as mandated by a lawful court order or the consent of the officer who is the subject of the records.

One can fully expect media personnel, plaintiff attorneys from various areas of litigation, and even the general public itself to be much more forceful and demanding when requesting records, while those law enforcement personnel and their counsel will likely be just as vigilant in reviewing such requests and likely objecting to the production of such records. As a result, the spotlight will clearly be on all such municipalities as well as their respective counsel and FOIL officers regarding how they analyze and process such new requests.