
    [933 NE2d 207, 906 NYS2d 808]
    In the Matter of Capital Newspapers Division of the Hearst Corporation et al., Appellants, v City of Albany et al., Respondents.
    Argued June 1, 2010;
    decided July 1, 2010
    
      APPEARANCES OF COUNSEL
    
      Office of General Counsel, Hearst Corporation, New York City (Jonathan R. Donnellan, Eve B. Burton and Eva M. Saketkoo), for appellants.
    
      John J. Reilly, Corporation Counsel, Albany (Jeffery V. Jamison of counsel), for City of Albany, respondent.
    
      Office of General Counsel, New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, Albany 
      (Matthew E Ryan and Ennio J. Corsi of counsel), for Albany Police Officers Union, Local 2841 of New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, respondent.
    
      David E. McCraw, New York City, Jacob E Goldstein, Sabin, Bermant & Gould LLP (Patricia A. Clark of counsel), Karen Kaiser, Assistant General Counsel, Associated Press, Anne B. Carroll, Deputy General Counsel, Dailey News, L.P., Barbara TV Wall, Associate General Counsel, Gannett Co., Inc., McLean, Virginia, Beth R. Lobel, New York City, Michael G. Cameron, Assistant General Counsel, News America Incorporated, for Advance Publications, Inc., and others, amici curiae.
   OPINION OF THE COURT

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 Chiefs conclusory affidavit did not establish that the documents were “used to evaluate performance toward continued employment or promotion,” as required by that statute (Civil Rights Law § 50-a [1]). 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.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order modified, etc.  