NY top court finds police disciplinary records can remain secret

By Robert Gavin
Times Union, Albany, N.Y.

ALBANY, N.Y. — The state’s top court has reaffirmed the scope of a law that keeps disciplinary decisions of police officers confidential and shields the records from public scrutiny.

In a 5-2 decision that upheld a lower court’s conclusion, the Court of Appeals rejected arguments by the New York City Civil Liberties Union (NYCLU), which tried to use the state’s Freedom of Information Law to obtain disciplinary decisions of New York City police officers.

In August 2011, the NYCLU filed a Freedom of Information Law request to obtain the documents dating back to Jan. 1, 2001. The records related to NYPD disciplinary proceedings that arose from complaints to the city’s Civilian Complaint Review Board, an independent agency that investigates complaints against police officers. If the Review Board substantiates a complaint, it refers the matter to the NYPD, which can try to discipline the officer with “charges and specifications.”

In a decision authored by Associate Judge Michael Garcia, the Court of Appeals sided with the NYPD, finding its decisions to be “quintessential ‘personnel records’” which cannot be disclosed under Civil Rights Law 50-a. The law, the decision noted, was designed to protect officers from being harassed or embarrassed by lawyers in cross-examination during litigation.

“These records are replete with factual details regarding misconduct allegations, hearing judges’ impressions and findings, and any punishment imposed on officers — material ripe for degrading, embarrassing, harassing or impeaching the integrity of an officer,” Garcia wrote. “The documents are, accordingly, protected from disclosure under Civil Rights Law 50-a.”

Chief Judge Janet DiFiore and Associate Judges Eugene Fahey, Paul Feinman and Leslie Stein all concurred, although Stein wrote an opinion showing some differences of opinion. Associate Judges Jenny Rivera and Rowan Wilson disagreed, each authoring opinions.

Rivera stated the ruling was “an interpretation of our statutes that cloaks government activity in secrecy and undermines our state’s public policy of open government.”

Robert Freeman, executive director of the state’s Committee on Open Government, said the ruling demonstrated a clear need to change the law. He said that, generally speaking, when a record indicates that a government employee engaged in misconduct or violated rules, that record is available to the public under FOIL.

“That would be so with respect to the great majority of public employees — whether they be clerical or administrative, teachers, even judges. But it’s not so in the case of police and correction officers,” Freeman told the Times Union. “It’s ironic that those classes of public employees who have the most power and authority over peoples’ lives are the least accountable, and reconsideration of section 50-a of the Civil Rights Law should be a priority in the upcoming legislative session.”

In a statement, the Legal Aid Society said the decision “cements a dangerous precedent in a democracy that relies on access of information in order to hold public officials accountable.” It said the ruling “will amplify harm to people abused by police, leave Black and Latinx communities vulnerable with even less recourse to hold police accountable, will support impunity by officers who will abuse the reliability of their anonymity, and will cause continued disruption in the justice system.”

Several media outlets — The Hearst Corp., which operates the Times Union; Advance Publications; the Associated Press; Daily News; Dow Jones & Company; Gannett Co.; News 12 Networks, Newsday and NYP Holdings — filed a joint brief supporting the NYCLU’s appeal. The New York City Patrolmen’s Benevolent Association, the union that represents NYPD officers, filed one supporting the department.

Patrick Lynch, the president of the PBA, said in a statement he was grateful the Court of Appeals “reaffirmed the core principles behind the law protecting the confidential personnel records of public safety professionals.”

Lynch said the court recognized the “tremendous potential for abusive exploitation of these records and the harassment — or worse — of police officers, firefighters and correction officers.”

After the NYPD’s initial rejection of the NYCLU’s document request, the NYPD responded to the group’s administrative appeal by releasing 700 pages of “disposition of charges” forms that contained redactions to conceal the names of the officers and nature of the complaints about them. The NYPD denied disclosure of “final opinions” of the cases.

After the NYCLU sued, a state Supreme Court justice ordered the NYPD to produce five decisions at random, but allowed the department to conceal identities of the officers and told the department to notify the officers. The department complied but argued the request, even with the redactions, violated Civil Rights Law 50-a.

The Appellate Division in Manhattan reversed the justice’s ruling and found the court could not order the NYPD to disclose redacted versions of the disciplinary decisions. The Court of Appeals heard arguments on the case last month.

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©2018 the Times Union (Albany, N.Y.)