Organizations that are challenging a controversial New York State law that allows police departments to keep officers’ disciplinary records from the prying eyes of open records requests have been dealt another defeat in the courts.
A panel from the Appellate Division, First Department affirmed a lower court’s ruling that the law, Civil Rights Law 50-a, prevents attorneys from the New York City Legal Aid Society and Cleary Gottlieb Steen & Hamilton for the New York City Police Department from getting their hands on records relating to misconduct allegations against officers and punishments they received via the state’s Freedom of Information Law.
The First Department’s ruling comes less than a month after the state Court of Appeals issued a 5-2 decision to deny the New York Civil Liberties Union’s effort to access documents related to disciplinary proceedings that arise when the Civilian Complaint Review Board refers allegations to the CCRB.
Justices David Friedman, Rosalynn Richter, Barbara Kapnick and Troy Webber joined on the brief, two-paragraph order to affirm a 2017 ruling by Manhattan Supreme Court Justice Joan Lobis that the plaintiffs’ requested files are exempt from FOIL.
The First Department cited the Court of Appeals ruling against the NYCLU in December, in which Judge Michael Garcia, writing for the majority, said that the requested materials could be used for “degrading, embarrassing, harassing or impeaching” a police officer.
Cynthia Conti-Cook, a staff attorney for Legal Aid’s special litigation unit, said that up until a few years ago, police disciplinary summaries, which Legal Aid has been attempting to obtain, were available to the public for decades.
“Today’s ruling against open government and accountability will further sow distrust in law enforcement and will amplify the harm inflicted by the police on black and Latino communities, who have even fewer means to hold the NYPD accountable for abuse and misconduct,” Conti-Cook said. “The Legal Aid Society will appeal this decision and continue our campaign with advocates from across New York to fully repeal 50-a this legislative session.”
The exemptions offered under 50-a, which have been on the books since the 1970s, were not widely known until the 2014 death of Eric Garner, who died while NYPD Officer Daniel Pantaleo held him in a choke hold. A Staten Island grand jury decided against criminal charges in the case, but Pantaleo still faces NYPD disciplinary charges.
A growing number of groups, including the New York City Bar Association, have thrown their support behind efforts to repeal 50-a; even officials from the New York City government, which has been victorious in cases regarding 50-a, has supported changes to the law.
Nicholas Paolucci, a spokesman for the city’s Law Department, said that while the First Department agreed with the city’s position that disclosing the requested records is not permitted under current state law, the city supports amending 50-a to “allow greater disclosure.”
Efforts to change the law have been met with stiff opposition from the Policeman’s Benevolent Association, which argues that allowing disclosure of officers’ personnel records puts their lives at risk.
In the previous legislative session, State Assemblyman Daniel O’Donnell, a Manhattan Democrat, sponsored a bill to narrow the exemptions offered under 50-a to performance valuations, but the bill stalled in March.
O’Donnell’s bill was co-sponsored by State Assemblyman Dan Quart, also a Manhattan Democrat, who has proposed a bill in the current session that would exclude footage from officers’ body-worn cameras from the 50-a exemption.
Quart said that O’Donnell plans to reintroduce legislation to repeal 50-a this session and that, with Democrats in control of the Senate, it might have a better shot at passing.
“Last session, with a Republican-controlled Senate, the likelihood of success was zero,” Quart said. “A full repeal is long overdue and with a newly elected Democratic majority, we finally have a real shot at repealing one of the worst anti-transparency laws in the country.”