Personnel and disciplinary record, subject: Lt. Edward M. Walsh (ret.)

T. McElwee filed this request with the Suffolk County Sheriff's Office of Suffolk County, NY.
Est. Completion Aug. 6, 2020
Status
Awaiting Appeal

Communications

From: T. McElwee


To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

The complete personnel record of Edward M. Walsh, a former lieutenant in the county sheriff’s office, as well as all disciplinary records that identify Walsh as a subject. For specificity and to rule out duplicates, the subject Edward M. Walsh is listed by the Bureau of Prisons as being age 54, which renders his year of birth as approximately 1966. A Newsday article published in 2014 states Walsh "worked for the sheriff’s office for the past 23 years," and that he underwent investigation to enter service in October 1990.

It is the requesting party's understanding that pursuant to legislation signed by the Governor of the State of New York, the law that prevented disclosure of this material (Civil Rights Law Section 50-a) has been repealed and all such records are now covered by the Freedom of Information Law.

In accordance with the Freedom of Information Law as it has been amended by aforementioned legislation, records that may be released include "the complaints, allegations, and charges against an employee; the name of the employee complained of or charged; the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; the disposition of any disciplinary proceeding; and the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee."

Under precedent, Freedom of Information Law uses a "balancing test" method of weighing privacy interests favoring redaction/denial against the public interest in favor of disclosure. This matter is of clear public interest for the following reasons: Walsh was Chairman of the Suffolk County Conservative Party and was arrested, tried and found guilty of corruption charges in 2016.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

T. McElwee

From: T. McElwee

To: Sheriff Dr. Errol D. Toulon, Jr., as chief executive of the Suffolk County Sheriff's Office and de facto Freedom of Information Law Appeals Officer

Re: FOIL Request - Personnel and disciplinary record, subject: Lt. Edward M. Walsh (ret.)

On 6/12/2020, I sent via US Postal Service a Freedom of Information Law request to the Suffolk County Sheriff's Office (captioned above, with full text attached as PDF). Whoever the agency's Records Access Officer is, that person has not responded to this request within the statutory limit of 5 business days for such a response.

As such, I am invoking my right to send an administrative appeal directly to the Sheriff on grounds that the Records Access Officer's failure to acknowledge receipt of a lawful records request within the mandated period of five (5) business is a constructive denial by the agency under the Freedom of Information Law.

I will cite the New York State Department of State Committee on Open Government advice regarding constructive denial of Freedom of Information Law requests:

"When an agency receives a request, §89(3)(a) of the Freedom of Information Law requires that it has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request […] A failure to comply with any of the time limitations imposed by law would constitute a denial of a request that may be appealed in accordance with §89(4)(a) of the Freedom of Information Law."

Please also note that under Freedom of Information Law, the agency "is required to respond to the appeal within ten business days of the receipt of the appeal by granting access to the records or fully explaining the reasons for further denial in writing. See FOIL §89(4)(b). If a determination on the appeal is not rendered within ten business days, the failure to do so constitutes a denial of the appeal."

I am also advised by Committee of Open Government that constructive denial of the appeal opens the agency to lawsuit under Article 78 of the Civil Practice Law and Rules, and that remedies include the possibility of court costs being recovered at the agency's expense.

I pray the Sheriff give a response granting the records request within the ten (10) business day window as required by statute, and set a timetable for the release of said records.

- T. McElwee

  • New20York20Freedom20of20Information20Law20Request2C20Personnel20and20disciplinary20re.pdf

From: Suffolk County Sheriff's Office

Hello Mr. McElwee,
This letter is written pursuant to Public Officers Law section 89 (3) to acknowledge the request for records that you recently sent to the Suffolk County Sheriff's Office pursuant to the Freedom of Information Law (FOIL). Please be advised that we are conducting a search for the requested records and August 6, 2020 is the approximate date on which your request will be granted or denied.
Best regards,

Kevin O'Reilly | Employee Relations Director
Suffolk County Sheriff's Office
100 Center Drive, Riverhead, NY 11901
Phone: (631) 852-2270
Fax: (631) 852-2268
Email: Kevin.O'Reilly2@suffolkcountyny.gov

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From: Suffolk County Sheriff's Office

Hello Mr. McElwee,
We are still processing this request. The large nature of the file and the current volume of FOIL requests will delay the completion of this task, but I am confident we will be able to complete our review by the end of August.

I greatly appreciate your patience.
Best regards,

Kevin O’Reilly | Employee Relations Director
Suffolk County Sheriff’s Office
100 Center Drive, Riverhead, NY 11901
Phone: (631) 852-2270
Fax: (631) 852-2268
Email: Kevin.O’Reilly2@suffolkcountyny.gov

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From: T. McElwee

Mr. Reilly,

I hope this day finds you well.

I wish to follow up on the prior email I received from your office regarding my FOIL request ("Personnel and disciplinary record, subject: Lt. Edward M. Walsh (ret.)") ; it stated the view of the Sheriff's Office view that "we will be able to complete our review by the end of August."

As this is the last working day of the month, I wish to remind the Office of its prior report of the request's status and offer it the possibility of fulfilling the request via email attachment.

If there are any issues holding up the release, please let me know and I am more than willing to hear the Office's rationale for a postponement and a suitable date.

Thank you,
TM

From: Suffolk County Sheriff's Office

Hello,
Thank you for your patience in this matter. I will be meeting with the County Attorney’s Office tomorrow to review our response and will have an answer for you at that time.
Best regards,

Kevin O’Reilly | Employee Relations Director
Suffolk County Sheriff’s Office
100 Center Drive, Riverhead, NY 11901
Phone: (631) 852-2270
Fax: (631) 852-2268
Email: Kevin.O’Reilly2@suffolkcountyny.gov

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From: T. McElwee

Mr. O'Reilly,

My apologies for the inconvenience of this belated follow-up, but I would hope that you could apprise me of the results of the discussion with the County Attorney regarding the Edward M. Walsh FOIL request per your last email (on 8/31), and if any decisions of importance to the FOIL request have been reached.

Thank you,
T. McElwee

From: Suffolk County Sheriff's Office

Hello Mr. McElwee,
Thank you for your patience during this process. Please see the attached documents closing out the administrative charges against former Corrections Officer Lieutenant Investigator Edward Walsh.

With regards to your request for “the complaints, allegations, and charges against an employee; the name of the employee complained of or charged; the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; the disposition of any disciplinary proceeding; and the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee.", your request is denied on the basis of FOIL-Advisory Opinion-17195 published by the New York Department of State Committee on Open Government, specifically:
In FOIL Advisory Opinion 17195<https://docs.dos.ny.gov/coog/ftext/f17195.html>, staff of the Committee opined that a record of an unsubstantiated or unfounded complaint may be withheld under FOIL where the agency determines such complaint would constitute an unwarranted invasion of personal privacy:
The exception of significance is § 87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that they are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of one’s official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy . . . . Conversely, to the extent that records are irrelevant to the performance of one’s official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy . . . . [W]hen allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.
Committee staff have issued similar opinions in FOIL AO 19771<https://docs.dos.ny.gov/coog/ftext/f19771.html>, FOIL AO 16764<https://docs.dos.ny.gov/coog/ftext/f16764.htm>, FOIL AO 12802<https://docs.dos.ny.gov/coog/ftext/f12802.htm>, FOIL AO 12722<https://docs.dos.ny.gov/coog/ftext/f12722.htm>, FOIL AO 11747<https://docs.dos.ny.gov/coog/ftext/f11747.htm>, FOIL AO 9463<https://docs.dos.ny.gov/coog/ftext/f9463.htm> , and FOIL AO 7602<https://docs.dos.ny.gov/coog/ftext/f7602.htm>. In sum, Committee staff have long advised that where an agency determines that a record of an unsubstantiated or unfounded complaint would, if disclosed (even in a redacted form (see, e.g., FOIL AO 19771<https://docs.dos.ny.gov/coog/ftext/f19771.html>)), constitute an unwarranted invasion of personal privacy, such record need not be disclosed.
The new provisions of FOIL did not make changes to provisions concerning personal privacy as defined in § 87(2)(b). Based on our long-standing interpretation that requires an agency to determine if an unsubstantiated or unfounded complaint against an employee would, if disclosed, constitute an unwarranted invasion of personal privacy, and absent language expressing that the legislature intended that law enforcement disciplinary records should enjoy less protection than the disciplinary records of other government employees, we do not impute such an intent.
The administrative charges against Lieutenant Investigator Walsh were postponed awaiting the outcome of a criminal proceeding initiated by the Federal Bureau of Investigation. Lieutenant Inv. Walsh left the Suffolk County Sheriff’s Office subsequent to his arrest by the FBI and prior to his conviction. At the conclusion of the criminal proceeding, Mr. Walsh was no longer in employment of the Sheriff’s Office and not subject to administrative charges. As there was no hearing, the charges were dropped and the case considered unsubstantiated.

Best regards,

Kevin O’Reilly | Employee Relations Director
Suffolk County Sheriff’s Office
100 Center Drive, Riverhead, NY 11901
Phone: (631) 852-2270
Fax: (631) 852-2268
Email: Kevin.O’Reilly2@suffolkcountyny.gov

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YOU HAVE THE RIGHT TO APPEAL A DENIAL OF YOUR APPLICATION IN WRITING TO THE OFFICE OF THE SUFFOLK COUNTY ATTORNEY WITHIN THIRTY (30) DAYS OF SUCH DENIAL. CONTACT THE FOIL APPEALS OFFICER, SUFFOLK COUNTY ATTORNEY, H. LEE DENNISON BUILDING, P.O. BOX 6100, HAUPPAUGE, NEW YORK 11788. THE FOIL APPEALS OFFICER MUST RESPOND IN WRITING WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF YOUR APPEAL. PLEASE ATTACH A COPY OF THE DECISION AND YOUR ORIGINAL REQUEST.

From: T. McElwee

To whom it may concern:

The following is my appeal decision of the Records Access Officers of the Suffolk Sheriff's Office to deny my request for the disciplinary and personnel records of former SCSO Lieutenant Edward M. Walsh.

To recap: Edward M. Walsh is a convicted felon. He formerly served as a Lieutenant in the Suffolk County Sheriff's Office (SCSO). Simultaneous to his holding of office at the SCSO, was also the Chairman of the Conservative Party of Suffolk County. In fact, the mixture of the two titles caused Walsh to repeatedly violate the law by engaging in partisan activity during time he was supposed to be serving as a non-partisan public official. (For further reference on the Walsh matter, I have attached the federal government's sentencing memorandum in its case against Walsh.

In spite of a public trial, the SCSO's own accounting of its discipline of Mr. Walsh has not been examined in full, due to a law (CRL 50-A) that was abused to protect corrupt law enforcement officials. That law was repealed this summer, and records –including Walsh's– were explicitly made open to the public through a Freedom of Information Law request. As such, I requested Walsh's disciplinary and personnel files.

Sadly, the Records Access Officer of the Suffolk County Sheriff's Office has denied my request as it appears to subscribe to the pre-50-A repeal norms of stifling transparency and covering up corruption, and it has become my duty to appeal. I will state my reasons:

First and foremost, the Records Access Officer's stated grounds for denial ("unwarranted invasion of privacy") is both overly broad and overly vague. Vague assertions of a privacy right to commit misconduct without scrutiny have not passed the muster in court where the rights of the public under FOIL have been challenged.

To wit: in the case Uniformed Fire Officers Association v. de Blasio (1:20-cv-05441), District Court, S.D. New York Judge Katherine Polk Failla ruled that the uniformed unions' vaguely stated concerns of personal privacy simply do not override the right of the public to transparency in the discipline of uniformed officers that is now enshrined in the New York State Freedom of Information Law. (At the moment, the transcript of Judge Failla's decision (which was delivered orally) is not available due to the embargo on publication until 11/30/2020 to allow for redaction before publication. However, there is abundant coverage of the Judge's decision. For reference, please see the file attached, a PDF printout of "Judge Rejects NY Police Unions’ Bid to Block Disciplinary Records" which ran in Courthouse News on August 21, 2020.)

A review of the pertinent law (Chapter 96 of the NYS Laws of 2020) which repealed 50-A and amended the FOIL, will show why Judge Failla ruled against an effort to continue censoring law enforcement officers' records, and why the Records Access Officer's denial must be similarly overturned.

I quote here verbatim from the Bill Memo, section "Justification": "Recent events have highlighted the importance for the public to have access to information, specifically with regards to law enforcement disciplinary records. The Freedom of Information Law helps achieve the goal of an open and transparent government by providing individuals with greater access to their government. There is a strong presumption under FOIL that government records are accessible to the public."

In legislative substance, the modified FOIL explicitly states that all law enforcement disciplinary records must be disclosed upon request. Law enforcement disciplinary records are defined explicitly and expansively as "any record created in furtherance of a law enforcement disciplinary proceeding." The definitions of disciplinary proceedings are also explicit and expansive, as "the commencement of any investigation and any subsequent hearing or disciplinary action conducted by a law enforcement agency."

By failing to provide a full record of disciplinary proceedings against Mr. Walsh, the SCSO Records Access Officer is in violation of the law.

In addition, I note that the same bill placed exemptions in the modified Freedom of Information Law regarding law enforcement officers' personnel records. These include specific rules requiring redaction of addresses, social security numbers, etc. from release. These exemptions exist to prevent blanket denials (such as the one from the Records Access Officer), and instead push Record Access Officers toward a sensible path of making necessary redactions to *portions* of records. Again, please note the FOIL is construed to grant a "strong presumption" of public access to government records.

In his denial, the Records Access Officer fails to cite a single exemption other than the vague "unwarranted invasion of privacy." Upon information and belief, the Records Access Officer has made the mistake of assuming *all* of Mr. Walsh's disciplinary record is an "unwarranted invasion of privacy." This is patently false. It is entirely possible to examine the Mr. Walsh's record of misconduct while redacting the mostly irrelevant portions that might infringe on his privacy rights (diminished as they are by his having held office).

For these reasons I appeal the SCSO Records Access Officer's decision and pray that the Appeals Officer both overturns it and orders a speedy release of the records, as they were requested.

-T. McElwee

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