5 years after repeal of police record ‘secrecy’ law, accountability gets a boost, some say

For decades, state statute shielded the disciplinary records of police officers and other uniformed civil servants from public view, preventing independent oversight of internal investigations and frustrating people who filed claims about overreach, abuse and violence by cops. 

But after the nationwide 2020 protests demanding police accountability following the killing of George Floyd by a Minneapolis officer, lawmakers in Albany repealed the section of state Civil Rights Law known as 50-a. The 1976 law and subsequent court decisions had wrapped officers’ personnel records behind a cloak, not subject to public inspection or review. 

Advocates claimed that New York’s law was the most conservative among the 23 states and the District of Columbia that in 2020 kept disciplinary records confidential. The law, proponents of repeal said at the time, made it nearly impossible for the public to find out even the basic information about officers charged with or responsible for misconduct, including lethal incidents.

Despite resolute and concerted efforts by police and other unions, which for years had kept similar legislation to repeal or even reform 50-a from even coming to the floor of the legislature, the bill easily passed first the Senate and then the Assembly on the same June 2020 day as Mr. Floyd’s funeral. Then-Governor Andrew Cuomo signed the bill into law three days later. 

The law strengthened the state’s Freedom of Information Law to mandate disclosure of police officers’ records, as well as those of firefighters and correction officers. But police departments continued to resist, often refusing to turn over anything beyond a narrow set of records. A slew of lawsuits and court cases followed, with police unions, including the New York City Police Benevolent Association, arguing that the disclosures would violate collective bargaining rights and also citing a danger to officers and their families if their personnel files were released to the public. 

But five years and a few months later, increased access to officers’ records is mostly working as advocates intended, according to a panel of civil-liberties attorneys and investigative reporters specializing in law enforcement. The reinforced FOIL laws are shedding light on internal disciplinary proceedings and, in some cases, exposing bad cops, according to a panel of civil-liberties attorneys and investigative reporters specializing in law enforcement. 

One of the panelists, Brendan J. Lyons, the managing editor at the Times Union, the Albany daily newspaper, said it was imperative to get deep and wide access to officers’ records to allow the public, the press and even investigative agencies to uncover poor and even illegal police practices and bad actors within departments. 

He argued that even access to accounts of internal disciplinary proceedings that eventually absolved officers of misconduct is crucial to uncovering patterns of bad behavior, given that “in many of these departments at times you had the fox watching the hen house,” Lyons said during Monday’s discussion.

The Times Union’s reporting, he said, has found that some officers have been absolved of the same misconduct allegations by different people “many, many” times. “And so that sort of raised the question of are the departments covering up misconduct at times or not doing a good enough job of sustaining allegations of civil rights abuses,” Lyons said.  

He noted that a Times Union investigation earlier this year showed that car crashes involving police vehicles had spiked in recent years and that data culled from police records that would otherwise have remained under wraps revealed “that in some cases you had officers who had a pattern of crashes.”

'Ensuring accountability'

Some police agencies, though, continue to stonewall or delay access. Some cite exemptions to the freedom of information law to keep the records under seal, the New York Civil Liberties Union assistant legal director, Bobby Hodgson, said. “Agencies are really throwing the kitchen sink and taking every opportunity to delay transparency, to hide historical records and current records of material that has, by law, been public or should have been public for the last five years,” he said during the panel discussion. 

And while formerly uncooperative agencies are finally starting to release “the first few records,” there remain a couple dozen open court cases challenging access. 

But in a decision that advocates said would end years of stonewalling, the state’s highest court in February ruled that police departments must make public records of officer misconduct investigations. The Court of Appeals ruling, in a case brought by the NYCLU against the Rochester Police Department, makes clear that departments cannot withhold files because complaints were deemed unsubstantiated, unfounded or resulted in no discipline. The court also held that records from before the 2020 repeal are also subject to freedom of information laws.

Beryl Lipton, a USA Today reporter specializing in police discipline data, said access to the records was vital if the public is to cultivate and retain trust with police. “We know that there were many members of the public who were very frustrated, rightfully, because their access to justice and to accountability from the people who were supposed to be protecting us was being thwarted by those very same individuals,” she said. 

Although there are some who believe nearly unfettered access to personnel records constitutes overreach, Lipton said there is a sizable contingent convinced that that access is essential. They include police officers, who, she said, “want to see improvements or do know that there were certain instances of misconduct that were not released to us.” 

“And so I think that has been really heartening to get the feedback that we have and to sort of slowly build up the trust,” Lipton added. 

While police departments and unions representing officers, including the Police Benevolent Association, said the release of records would compromise officers’ safety and that of their families, that fear, so far, seems to be unfounded, according to the panelists. 

“That came up then in 2020, it's come up now and courts continue to find that there is like zero evidence of this claim,” Hodgson, the NYCLU’s assistant legal director, said. He noted that in states where officers’ records have been available for decades courts have found that releasing the information does not create elevated danger for officers.

Jennvine Wong, a supervision attorney at the Legal Aid Society, said it was vital to turn to “evidence-based” conclusions. “And the evidence does not show that officers' safety has actually been put at any kind of increased risk just because these records have been made public,” she said. “So it's really about … the public being able to see the entirety of what's happening with these investigations and ensuring that there is some sort of accountability, that there is process, that things are being done the way that they should be done.”

But the PBA has noted several incidents since the law’s repeal of harassment, violence or threats of violence against officers, among them one last year when a known provocateur flung a flaming hat at an NYPD officer’s Brooklyn home after he and others protested the cop’s alleged rough treatment of demonstrators at a rally the day before. 

“Our members and their families have been subjected to targeted harassment — or worse —  based on the personnel records that were dumped into the public domain following the repeal of Civil Rights Law section 50-a,” the PBA’s president, Patrick Hendry, said in a statement. “This wasn’t an ‘unintended consequence.’ Anti-police activists have explicitly said that their goal is to make police officers quit their jobs. This kind of harassment is yet another factor contributing to the NYPD’s historic staffing crisis and driving talented cops away from the profession altogether

richardk@thechiefleader.com