An appeals-court judge last week blocked the NYPD from releasing body-camera footage until the entire Appellate Division can hear the Patrolmen’s Benevolent Association’s argument that the videos are actually personnel records that under state law may not be made public without court approval.
The PBA sued in January to stop release of the footage, contending that the Police Department in making it public was risking the safety of officers in return for political gain. State Supreme Court Justice Shlomo Hagler rejected the suit at the beginning of this month.
No Right to Challenge?
He found that the statute at issue, Section 50-a of the State Civil Rights Law, does not allow third parties such as the union to intervene in disputes over what should be released.
“I do respectfully request that the Legislature in its infinite wisdom go back and review,” said Justice Hagler, apparently joining civil-liberties advocates, the state Committee on Open Government, Mayor de Blasio and others who believe the law should be modified or revoked.
The PBA appealed, and Associate Justice Rosalyn Richter issued a temporary restraining order May 14 prohibiting the release of video until all five judges can consider the case. The PBA and the city must submit written arguments by June 5, and the Appellate Division will rule at some point after that.
Justice Richter specified that while the order was in effect, the Mayor or the Police Commissioner could seek court permission to release footage if they felt it was necessary.
‘Can’t Undo Damage’
PBA President Patrick J. Lynch restated the union’s case: “Each time the NYPD illegally and arbitrarily releases body-worn-camera footage, they are harming police officers’ safety, the public’s right to privacy and the interests of justice in ways that can’t be undone.
“The Legislature enacted laws limiting public disclosure of police officers’ personnel records to guard against exactly this scenario, and police officers have a clear right to challenge the NYPD’s tortured attempts to twist the law to serve its own purposes. We are grateful for this judge’s ruling and look forward to bringing our case before the full appellate panel.”
The city expressed dismay. “We are disappointed with this interim ruling,” said Nicholas Paolucci, a spokesman for the Department of Law. “The whole idea behind the BWC program is to ensure transparency and accountability for the public. We believe BWC footage is a factual record of an incident, not a personnel record protected by 50-a. We'll proceed accordingly in the litigation.”
Section 50-a prohibits the release of records that could be used to evaluate an officer for continued employment or promotion. They can be made public only with a court order or permission of the officer involved.
NYPD Late to Party
Most large police departments in the state started following the law after it was passed in 1976. The NYPD, however, did not realize until two years ago that it was not doing so. When it did, it removed summaries of disciplinary actions against officers from the NYPD press office and warned that any penalties taken in high-profile cases such as the death of Eric Garner might have to be kept secret.
Critics said the NYPD’s new position was an overly-broad interpretation of the law and flew in the face of Mr. de Blasio’s promise of greater government transparency. The Mayor countered that he had to follow the law but urged the Legislature to change it. A challenge to the law relating to Mr. Garner’s death in 2014 after officers tried to arrest him for selling loose cigarettes is before the state Court of Appeals.
Before the PBA sued, the NYPD was releasing footage on a case-by-case basis at the discretion of Police Commissioner James P. O’Neill. It has made public video in three shootings involving police officers.
Are Releases Political?
The PBA argued in its suit that decisions on what to release are made on the basis of politics. Civil-liberties advocates agreed, saying that the stated purpose of the body-camera program, to increase transparency and public trust in the police, will not be achieved unless footage from more incidents is made public.
The Police Department plans to have its entire patrol force equipped with body cameras by the end of the year.