2010 NY Int. 133

This opinion is uncorrected and subject to revision before publication in the Official Reports.

2010 NY Slip Op 05704

Decided on July 1, 2010

No. 126

In the Matter of Capital Newspapers Division of the Hearst Corporation et al., Appellants,

v

City of Albany et al., Respondents.

Jonathan R. Donnellan, for appellants.

Jeffery V. Jamison, for respondent City of Albany.

Matthew P. Ryan, for respondents Albany Police

Officers Union et al.

Advance Publications, Inc. et al., amici curiae.

MEMORANDUM

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.

Respondent City of Albany failed to meet its burden of demonstrating that the gun tags are "personnel records" under Civil Rights Law § 50-a. The Police Chief's conclusory affidavit did not establish that the documents were "used to evaluate performance toward continued employment or promotion," as required by that statute. Consequently, the unredacted gun tags do not fall squarely within a statutory exemption and are subject to disclosure under the Freedom of Information Law (FOIL) (see Public Officers Law § 87 [2]). Petitioners' claim that Supreme Court abused its discretion in denying counsel fees is without merit.

* * * * * * * * * * * * * * * * *

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Decided July 1, 2010