Earlier this week, in response to a nationwide outcry for police reform, the New York Legislature repealed Civil Rights Law § 50-a, a decades-old statute that largely prohibited the disclosure of police disciplinary records. The justification included the following: “Repeal of § 50-a will help the public regain trust that law enforcement officers and agencies may be held accountable for misconduct.” Governor Cuomo has now signed the new legislation, which takes effect immediately.
Prior to its repeal, Civil Rights Law § 50-a prevented the disclosure of police officer personnel records without either the express, written consent of the police officer or a court order. Civil Rights Law § 50-a considered confidential and not subject to inspection or review “[a]ll personnel records used to evaluate performance toward continued employment or promotion ...[.]” This law also applied to the personnel records of firefighters and correction officers.
As recently as December 11, 2018, the New York Court of Appeals reiterated the protections afforded to police officers under Section 50-a in New York Civ. Liberties Union v. New York City Police Dept., 32 N.Y.3d 556, 564 (2018). In that case, the New York Civil Liberties Union (NYCLU) had submitted a request to the New York City Police Department (NYPD) for copies of police disciplinary records. After their request was denied by the NYPD, the NYCLU filed an Article 78 petition advancing several policy arguments in support of their position that the records should be disclosed, including the need for public confidence in the integrity of the police force.
The Court of Appeals explained that these policy arguments were considered in the 1970s prior to the passage of the statute, but the Legislature “made the ‘policy choice’ to ‘shield the personnel records of these officers from disclosure’ by extending broad statutory protection while providing only limited exceptions for their release.” The Court went on to rule that the disciplinary records requested by the NYCLU were “quintessential personnel records” protected by Civil Rights Law § 50-a, and therefore, not subject to disclosure. The Court stated:
The statute was designed to protect police officers from the use of their records “as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation” … To that end, Civil Rights Law § 50-a “prevent[s] release of sensitive personnel records that could be used in litigation for the purpose of harassing or embarrassing” officers ... “Documents pertaining to misconduct or rules violations” by an officer are “the very sort of record which, the legislative history reveals, was intended to be kept confidential”...[.]
The new legislation repealing Civil Rights Law § 50-a firmly places police disciplinary records within the scope of New York’s Freedom of Information Law, found in Public Officers Law §§ 84-90. However, the new legislation also includes important amendments to those FOIL provisions of the Public Officers Law, which now require or allow for the redaction of certain information contained in “law enforcement disciplinary records” prior to public disclosure.
Under the amendments to FOIL, “law enforcement disciplinary records” means any record created in the furtherance of a law enforcement disciplinary proceeding, including: (a) the complaints, allegations and charges against an employee; (b) the name of the employee complained of or charged; (c) the transcript of any disciplinary trial or hearing, including any exhibits; (d) the disposition of any disciplinary proceeding; and (e) the final written opinion or memorandum supporting the disposition and discipline imposed, including the factual findings, analysis of conduct and appropriate discipline.
A law enforcement agency must redact the following information from law enforcement disciplinary records prior to disclosure: (a) a police officer, peace officer, firefighter or firefighter/paramedic’s medical history (unless related to misconduct); (b) any home addresses, personal telephone numbers, personal cell phone numbers and personal email addresses, including information about a complainant or any other person named in a law enforcement disciplinary record; (c) any social security numbers; and (d) the use of an employee assistance program, mental health service or substance abuse assistance service by a police officer, peace officer, firefighter or firefighter/paramedic, unless such use is mandated by a law enforcement disciplinary proceeding that may otherwise be disclosed.
A law enforcement agency may redact police disciplinary records pertaining to technical infractions. A technical infraction is defined as “a minor rule violation…solely related to the enforcement of administrative departmental rules that (a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person’s investigative, enforcement, training, supervision, or reporting responsibilities.”
Law enforcement agencies and public records officers, or those responsible for responding to FOIL requests, should be made aware of the repeal of Civil Rights Law § 50-a and the new redaction requirements.