In Matter of Luongo v. Records Access Officer, Civilian Complaint Review Bd. (49 Misc 3d 708, 15 NYS3d 636 ), the petitioner, the Attorney-in-Chief of Legal Aid's Criminal Defense Practice, made a FOIL request to the CCRB for information about a police officer involved in an incident in which he was videotaped engaging a suspect (Eric Garner) from behind and bringing him down to the ground.
Specifically, the petitioner requested the CCRB to provide a summary of its records regarding the officer indicating: the number of substantiated complaints brought against the police officer to the CCRB before the Garner incident and any CCRB recommendations made to the NYPD based on those substantiated complaints (the summary).
The CCRB denied the request on the grounds that the summary was exempt under Civil Rights Law § 50-a (1). Following the CCRB's failure to respond to the petitioner's appeal, the petitioner commenced an article 78 proceeding seeking the information requested.
The court held that the CCRB and the officer involved, also a respondent, had failed to show that the materials were exempt from disclosure, rejecting their reliance upon Telesford for the reasons noted above, and emphasizing that the CCRB was a city agency independent of the NYPD (id. at 715-716). The court also held that even assuming the summary was a personnel record, disclosure was nevertheless warranted under controlling Court of Appeals decisions, essentially because the request was limited and did not give rise to the risks contemplated by the legislature in enacting the statute (id. at 718).