ing to prevent disclosure bearing the burden of demonstrating
the applicability of the exemption claimed by articulating a
particularized and specic justication for denying access
(Matter of Farbman & Sons v New York City Health & Hosps.
Corp., 62 NY2d 75, supra; see, Capital Newspapers v Burns, 67
NY2d 562 [1986]; Matter of Daily Gazette v City of Schenectady,
242 AD2d 164, supra; Matter of Ruberti, Girvin & Ferlazzo v
New York State Div. of State Police, 218 AD2d 494 [1996]). As
the Court of Appeals held in Matter of Daily Gazette v City of
Schenectady (93 NY2d 145, 159 [1999], supra) in the case of a
claim that disclosure is specically exempted by statute by rea-
son of section 50-a of the Civil Rights Law, ‘‘this means that
the agency must demonstrate a substantial and realistic
potential of the requested material for the abusive use against
the ocer.’’
The defendant argues that the Internal Aairs Bureau
investigation le sought is not subject to disclosure because it
is considered a personnel record under section 50-a of the Civil
Rights Law. As such, the applicable FOIL exemption would be
as contained in section 87 (2) (a) which provides that an
‘‘agency may deny access to records or portions thereof that
* * * are specically exempted from disclosure by state or
federal statute’’ (see, Matter of Prisoners’ Legal Servs. v New
York State Dept. of Correctional Servs., 73 NY2d 26 [1988]).
Section 50-a provides in pertinent part that ‘‘[a]ll personnel rec-
ords, used to evaluate performance toward continued employ-
ment or promotion * * * shall be considered condential and
not subject to inspection or review * * * except as may be
mandated by lawful court order.’’ Initially the court notes that
the defendant has not established that an Internal Aairs