MASTROIANNI v SUFFOLK COUNTY [181 Misc 2d 1003]1003
[696 NYS2d 395]
Anthony Mastroianni, as Public Administrator of the Estate
of Adell P. Swiggett, Deceased, Plainti, v County of
Suffolk et al., Defendants.
Supreme Court, Suolk County, September 22, 1999
HEADNOTE
Disclosure — Freedom of Information Law — Police Department
Internal Aairs Bureau Investigation File
In a wrongful death action arising out of defendants’ alleged failure to
properly enforce an order of protection issued in favor of decedent, plainti's
motion to compel defendants to produce a police department Internal Aairs
Bureau (IAB) investigation le is granted to the extent that the court will
conduct an in camera review to determine what information is discoverable.
Under the Freedom of Information Law (FOIL), agency records are
presumptively available for public inspection and copying except where those
records are specically exempted from disclosure by State or Federal statute
(Public Ocers Law § 87 [2] [a]). Although Civil Rights Law § 50-a provides
that police records used to evaluate performance toward continued employ-
ment or promotion are condential and not subject to inspection except upon
court order, defendant has not established that an IAB le constitutes a
personnel record, or that a particular FOIL exemption applies. Even if this
le constitutes a personnel le, the court may review the le for the purpose
of ascertaining what information is discoverable. The facts of this case,
coupled with the 911 tapes, the deposition transcripts of police ocers
involved in the incident and the transcripts of IAB interviews, which reveal
that substantial inquiry was made of the ocers as to what they told IAB,
constitute a sucient factual predicate showing of materiality and relevancy