Updated: October 18, 2021
Advocacy groups have long clamored for the repeal of New York Civil Rights Law §50-a, otherwise known as the Police Secrecy Law. Organizations such as the Legal Aid Society and Communities United for Police Reform pushed for the repeal of §50-a in light of the Black Lives Matter movement, arguing that police officers could not be adequately held accountable for misconduct if the law remained in effect.
On Friday, June 12th, 2020, Governor Cuomo signed Assembly Bill A10611, known as the “Say Their Names” law. The bill effectuated many impactful changes pertaining to police reform, including the appeal of §50-a.
Enacted in 1976, §50-a was a subset of the general right of privacy that exists in New York State. The text stated that “all personnel records used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter/paramedic, correction officer, or peace officer . . . except as may be mandated by lawful court order.”
Although perhaps not the original intent, the law was interpreted as prohibiting public access to potential police misconduct and disciplinary records unless a court ordered an officer’s records to be turned over in the context of a proceeding. As recent as 2018, the New York Court of Appeals affirmed that this law was to be applied broadly in the restriction of public access to police personnel and disciplinary records. As a result, these records were shielded from the public view except in limited circumstances.
With the repeal of §50-a, police personnel and disciplinary records in New York are no longer protected from public scrutiny. Some have voiced concerns regarding the personal information of police officers, and whether or not these individuals can now be more easily targeted by those who may wish to do them harm. However, the “Say Their Names” law makes clear that certain personal information should be redacted.
Post-repeal, police disciplinary records may now be made public under the state’s Freedom of Information Law (FOIL). FOIL requires that state and local agencies must acknowledge requests for document within five business days. In practice, record requests pursuant to the repeal of §50-a have been met with dismissive or contentious responses from police departments.
Police departments have demanded that the cost of sorting and redacting disciplinary records be borne by record seekers. FOIL authorizes agencies to charge a fee of 25 cents per copy for copies of records. Agencies may also charge the cost of the salary of the lowest paid agency employee to prepare the records or outside professional services if the agency’s technology is inadequate to process the request. Last, the agency can charge for associated costs of necessary storage devices.
However, the fees requested by the police departments are more than expected. For example, a nonprofit news site sought documents from the Manilus Police Department concerning alleged police misconduct and related discipline imposed on the officers by the department. In response, the department requested that the new site pay $47,504. The Yonkers and Oneida county departments similarly responded to such record requests asking for thousands of dollars in reimbursed costs.
The request for police disciplinary records has yielded a variety of inert responses. Many departments have constantly delayed sending records for months on end. Others boldly claim they have no record of reported police discipline. The Ogden County Police Department admitted that it destroys records older than three years. Eighty departments refused to even respond to the document requests.
Record requests have also been met with direct opposition by police departments. Many responded that record requests for “all disciplinary records” are far too broad and must be narrowed to be completed. Further, some departments refuse to disclose records on the basis of ongoing lawsuits in Buffalo, Schenectady and New York where departments are challenging the legality of releasing pending or unsubstantiated complaints. A few departments staunchly claim that §50-a only applies to records created after its repeal.
Police departments’ refusal to comply with §50-a in New York has not gone unnoticed. Civil rights groups have begun to file suit against non-complying departments.
On October 4, 2021, the New York Civil Liberties Union (NYCLU) filed suit against the Nassau County Police Department (NCPD) for unlawfully denying the release of all records related to police misconduct. The lawsuit stems from the NYCLU’s request for documents from the NCPD from January 1, 2000 to present. In the requests, the NYCLU sought documents concerning both complaints of police misconduct that that resulted in officer discipline and complaints of police misconduct that did not result in officer discipline. In response, the NCPD, like other departments, denied requests for all records of police misconduct complaints created prior to the date New York repealed §50-a.
The NCDPD lawsuit is one of many NYCLU efforts to promote police transparency. It has already filed lawsuits alleging violations of FOIL against the Rochester, Syracuse, Freeport, Tory and Buffalo police departments.
Regarding these lawsuits, Susan Gottehrer, the Nassau County regional director at the NYCLU, stated: “New Yorkers…spoke out and demanded change. The Nassau County Police Department cannot deny the fact that 50-a was repealed, and police transparency is essential to police accountability. We will continue to take action to ensure 50-a is repealed…in practice across New York state by obtaining full documentation of misconduct long withheld from the public.” Time will tell if the NYCLU’s efforts are met with resistance from the New York courts and how the courts will enforce the repeal of 50-a in practice.