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The New York Court of Appeals said in a decision Tuesday that a section of the state’s Civil Rights Law allowed the New York City Police Department to withhold certain records on police misconduct from public disclosure.

The decision could set the stage for state lawmakers to repeal that statute during the upcoming legislative session, which would then allow those documents to be obtained through a request under the Freedom of Information Law, known commonly as FOIL.

The lawsuit was brought by the New York Civil Liberties Union against the New York City Police Department, which chose to formally stop making certain personnel records public through a policy change in 2016, though the litigation was over a different set of documents. The NYPD said in a statement reacting to the decision that it changed the policy to conform to state law.

“The NYPD initiated the policy change because it corrected a past deficiency,” the NYPD said. “The change should remain in place.”

The past deficiency, according to reports, was that section 50-a of the state Civil Rights Law prohibited the NYPD from releasing those documents, which can often include information that could be used to identify the officers involved. The Court of Appeals held Tuesday that the NYPD correctly withheld other documents, involving disciplinary decisions, under the same statute.

The lawsuit was born from a FOIL request of personnel records sent to the NYPD in 2011 from NYCLU. The organization was seeking final opinions from the NYPD’s internal adjudication process that reviews allegations of misconduct by its officers.

The request was initially denied by the NYPD, which cited Public Officers Law § 87 (2) (a) in its rejection. That law provides that an agency may withhold records from disclosure if they are exempt under another state or federal statute. The NYPD then pointed to section 50-a in its denial.

After an administrative appeal from NYCLU, the NYPD ended up producing some—but not all—of the documents that were requested, and applied redactions to them. The NYPD, again, cited section 50-a in its decision to withhold and censor certain records.

NYCLU then sued the NYPD, which the group alleged was illegally withholding the documents they requested. Manhattan Supreme Court Justice Shlomo Hagler decided that the NYPD had to release the records with redactions. That decision was unanimously reversed by the Appellate Division, First Department.

The Court of Appeals affirmed the appellate court’s decision Tuesday, saying section 50-a correctly allowed the NYPD to withhold the personnel records from NYCLU.

Section 50-a reads that “[a]ll personnel records used to evaluate performance toward continued employment or promotion … shall be considered confidential and not subject to inspection or review.” There are two exceptions to that rule—either the police officer has to consent to their records being released, or a court has to issue an order making them public.

NYCLU argued before the Court of Appeals that the law’s protection is limited to the context of actual or potential litigation. Associate Judge Michael Garcia wrote in the court’s opinion that the statute applies more broadly than that interpretation.

“The NYCLU’s FOIL request seeks internal police department disciplinary records, spanning a 10-year period, that arise from civilian complaints against NYPD officers. These records are replete with factual details regarding misconduct allegations, hearing judges’ impressions and findings, and any punishment imposed on officers,” Garcia wrote. “The documents are, accordingly, protected from disclosure under Civil Rights Law § 50-a.”

Chris Dunn, an attorney with NYCLU who argued the case before the Court of Appeals, said in a statement that the decision is a setback for government transparency and urged the state Legislature to repeal that section of the law.

“This is a terrible step back for transparency and police accountability in New York. 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,” Dunn said. “If we have learned anything over the last few years of turmoil around police misconduct, it is that secrecy breeds distrust and worse.”

The New York City Law Department also urged a change in the law in a statement reacting to the decision.

“The State’s highest court has held that the transparency this administration favors concerning police disciplinary records is simply not permitted under the court’s interpretation of current state law,” the statement said. “If greater transparency is to be achieved, section 50-a of the state’s civil rights law must be amended.”

The repeal is supported by the New York City Bar Association and other legal groups, like the Legal Aid Society and the New York State Defenders Association.

Assemblyman Daniel O’Donnell, a Democrat from Manhattan, has a bill in the Legislature that would repeal that part of the law, though it hasn’t gotten much traction among his colleagues. The bill has been referred to the Assembly Governmental Operations committee for the past two years, where it hasn’t been brought up for a vote.

The legislation does not have a sponsor in the state Senate. O’Donnell, who is currently running to become the next New York City Public Advocate, did not immediately return a call for comment Tuesday. If he’s selected to fill the citywide position, the bill will need a new sponsor in the Assembly to move forward.

Associate Judge Jenny Rivera argued in a dissent that section 50-a should not have prevented the NYPD from granting the FOIL request in the first place. Her position was similar to the trial court’s decision in that she would have allowed the records to be released with redactions of identifying information.

“Supreme Court properly ordered disclosure to the NYCLU of redacted copies of the requested disciplinary rulings,” Rivera wrote. “The majority’s conclusion to the contrary is based on an interpretation of Civil Rights Law § 50-a that does nothing to serve the purpose of that statute and instead undermines New York State’s strong public policy of open government, transparency, and public access to government records.”

Associate Judge Rowan Wilson also dissented, but in a separate opinion. Chief Judge Janet DiFiore and Associate Judges Eugene Fahey, Paul Feinman, and Leslie Stein joined with Garcia in the majority.


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