February 6th, 2019
By Cynthia Conti-Cook and Dan Quart
This past December, the New York Civil Liberties Union lost a lawsuit against New York City in which it argued that the public has a right to the disclosure of disciplinary recommendations by the Deputy Commissioner of Trials – the administrative law judge who oversees the Civilian Complaint Review Board prosecutorial process.
The suit forced New York’s highest state court to weigh in on the meaning of Civil Rights Law 50-a, a controversial law long treated as an exemption to New York’s Freedom of Information laws (also known as “FOIL”). While 50-a was initially enacted to protect police officers against “unverified and unsubstantiated” allegations by blocking the release of police personnel records “used to evaluate performance towards continued employment or promotion,” the NYPD has since successfully fought to broaden the scope of the law. And while the de Blasio administration has long promised increased transparency, it is in part responsible for the extensive interpretation of the law we are forced to grapple with today.
50-a is the law that prevented Gwen Carr, the mother of Eric Garner, from knowing whether the officers who killed her son had prior histories of misconduct. It is the law that the Police Benevolent Association believes should prevent body camera footage from being publicly accessible and aggregate statistics on force from being reported. It’s what shields police officers from public scrutiny at the expense of accountability, transparency and safety.
The recent Court of Appeals decision reframed 50-a from being an exemption to FOIL – tethered to historical deference in favor of open records disclosure in the public interest – to framing 50-a on a pedestal of blanket police privacy rights with protections exceeding those of all other state employees. The consequence of this decision is that it cemented the NYPD’s recent strict fidelity to making virtually all information about the prior misconduct of police officers – whether caught on video, violent, criminal or otherwise squarely in the public interest – unattainable for members of the public. It made clear there is only one way for New Yorkers to redefine what information is in the public interest, and that’s through full legislative repeal of 50-a.
Repealing 50-a does not mean that officers’ residential, medical or Social Security information will be accessible, as existing FOIL exemptions already prevent public employees’ personal information from being disclosed. It would under no circumstance allow anyone to FOIL the home address or Social Security number of an officer. It would not allow anyone with a personal vendetta against an officer to have more access to their biographical history or private life. Repealing 50-a would simply restore police, court and correction officers to the same level of privacy protection that other public employees, like teachers, and other state-licensed professionals expect regarding their disciplinary records.
Many licensed professionals whom the public must trust the state to oversee, like doctors, lawyers and architects, are all subject to discipline that is reported online. This transparency supports accountability systems and public trust in the state’s ability to regulate these professionals. Police should be no different. Law enforcement is entrusted with vast power, including discretion to use force and weapons, to detain people, and the ability to access sensitive databases and powerful surveillance technology. When officers appear in court to testify in uniform, there is a tacit understanding that their shields symbolize the state’s confidence in them, acting as an endorsement of her good standing. Withholding disciplinary information about officers’ misconduct sows distrust in that system and the state’s ability to hold officers accountable.
The court’s recent ruling on 50-a affords little weight to the public interest. Its interpretation not only undermines our collective ability to analyze, understand and participate in police reform measures that improve our trust in the police accountability and justice systems, it perpetuates ongoing trauma and fear in communities experiencing frequent police abuses and witnessing the failure of government to take accountability measures to prevent future harms. 50-a deprives communities of the most basic information related to government workers who are empowered to use lethal force, as well as the public’s ability to function as a check on governmental proceedings and engage in informed discourse over the reform of broken systems.
There is an independent oversight agency tasked with investigating complaints against the NYPD: the Civilian Complaint Review Board. But while the agency has access to undisclosed police personnel records and holds hearings open to the public, under 50-a even it is barred from publishing judicial opinions that decide and detail trial outcomes. This is what the NYCLU’s lawsuit sought to undo.
Now, one would think that an agency founded to foster greater transparency and accountability would find common ground with the NYCLU. Yet, the CCRB never got a chance. Though the NYPD and the CCRB’s goals are distinct and separate, Mayor Bill de Blasio and his corporation counsel, Zachary Carter, prepared a joint defense, thereby co-opting the CCRB into a pro-50-a argument that’s entirely antithetical to its mandate.
With the mayor’s interpretation of 50-a fueling distrust in law enforcement, there is but one clear solution.
In her dissent, Justice Jenny Rivera noted that “government is the public’s business.” This expectation is at the heart of a First Amendment right of access to judicial proceedings and, through enactment of the Freedom of Information laws in 1974, that expectation of public access was extended to legislative and executive functions as well. In order to restore New Yorkers’ ability to engage in reform of police disciplinary systems and to restore police privacy protections to those of other public employees, the New York state legislature should repeal 50-a.