The state’s highest court has ruled that police disciplinary records are exempt from disclosure, records show.
The Court of Appeals voted 4-2 to uphold the key elements of state Civil Rights Law 50-a, which has been read to bar law enforcement agencies from turning over police personnel records.
“This case presents a straightforward application of (the law), which mandates confidentiality and supplies no authority to compel redacted disclosure,” the majority of the court ruled.
However, in dissent, Justice Jenny Rivera wrote that the ruling was “bad decision-making” and noted the ruling is “an interpretation of our statutes that cloaks government activity in secrecy and undermines our state’s public policy of open government."
Judge Rowan Wilson, likewise, offered an even more sharply worded dissent, noting NYPD disciplinary trials are already open to the public. “There is no basis to withhold that information — already made public in the hearings — from disclosure,” he wrote. “Because the City has made a decision to reveal some information to the public as part of those proceedings, it cannot withhold that same information when another party seeks to obtain it under FOIL (the Freedom of Information Law).”
The New York Civil Liberties Union challenged the law, seeking all final opinions in disciplinary cases investigated by the Civilian Complaint Review Board from 2001 to the present. The NYPD stubbornly fought the request even after the NYCLU agreed to accept the records with all identifying information of the officers blacked out.
“This is a terrible step back for transparency and police accountability in New York,” said Christopher Dunn, associate legal director of the NYCLU. “But it’s also a wake-up call to the incoming legislature that it needs to repeal section 50-a to assure that police disciplinary practices no longer remain secret. If we have learned anything over the last few years of turmoil around police misconduct, it is that secrecy breeds distrust and worse.”
The Legal Aid Society also slammed the decision. “The Court of Appeals decision cements a dangerous precedent in a democracy that relies on access of information in order to hold public officials accountable,” the society said.
“This decision fails to follow the principles of open government and the deference courts have traditionally given to open records laws. By emphasizing 50-a’s privacy protections over open government principles, the court’s decision today will amplify harm to people abused by police.”
Patrick Lynch of the Patrolmen’s Benevolent Association said he was pleased.
“We are grateful that the Court of Appeals has once again reaffirmed the core principles behind the law protecting the confidential personnel records of public safety professionals,” he said. “For more than 40 years, the Court has recognized the tremendous potential for abusive exploitation of these records and the harassment — or worse — of police officers, firefighters and corrections officers. These risks call for a careful, well-thought-out approach to handling and releasing records.”
The NYPD routinely provided disciplinary case outcomes to the media for decades, until 2016 when its lawyers suddenly concluded that was against the law. A series of legal challenges filed by the New York Civil Liberties Union and the Legal Aid Society commenced.
The decision also started a firestorm of criticism — spurred by allegations of favoritism and unfair treatment of cops reported in the Daily News — that forced Police Commissioner James O’Neill to name a panel of two former U.S. attorneys and a former federal judge to conduct a review of the entire disciplinary system. That review is expected to be complete in 2019, but it, too, has its critics.
Writing in The News Monday, Arnold Kriss, a former NYPD trial commissioner, called for public hearings and a more independent review. “Reform is urgent,” he wrote. “Independence is needed, not a NYPD-overseen panel … Regardless of where disciplinary matters are heard, the public’s right to know how the NYPD disciplines its officers is critical.”
Though both Mayor de Blasio and O’Neill have said they want the law changed, the city has continued to fight legal challenges to the new policy.
Bills that would change the law in some fashion proposed by a number of legislators have a better chance of getting to a vote now that the state Senate is controlled by the Democratic party.
The police unions, meanwhile, have said any change to the law would be challenged in court.