NY Appeals Court Says Law Enforcement Can’t Withhold Misconduct Records Containing Only ‘Unproven” Allegations
New York law enforcement agencies have always considered transparency to be something to be foisted on other government entities. The NYPD spends a lot of its time screwing over public records requests, in one notable case rejecting a Freedom of Information Law (FOIL) request for a copy of its FOIL response guidelines.
For years, these agencies were blessed with statutory opacity. A state law known as 50-a presided over police misconduct records for more than four decades. That law exempted most of these from FOIL requests. This law was finally taken off the books in 2020, partially in response to calls for more transparency and accountability being made around the nation following the murder of unarmed black man George Floyd by Minnesota police officer Derek Chauvin.
But taking the law off the books didn't immediately make law enforcement agencies more responsive to FOIL requesters. It has taken a lot of litigation to force agencies to do what everyone else who isn't a cop is expected to do: obey the law.
More litigation is involved here. The Nassau County Police Department (NCPD) was sued by Newsday, a Long Island-based newspaper, for its refusal to turn over records requested by its journalists: namely, misconduct records involving officers merely accused of misconduct.
The NCPD claimed files containing nothing more than unsubstantiated allegations were off-limits, protected by other state privacy laws and FOIL exemptions. The NCPD is wrong. It has lost this lawsuit, creating precedent that will hopefully discourage other local law enforcement agencies from engaging in the same bad-faith interpretation of public records laws.
The state appeals court covering portions of New York City and the surrounding suburbs has issued a landmark ruling promoting public access to police discipline records.
The Second Department of the Supreme Court's Appellate Division ruled last week that police agencies cannot automatically withhold records of police discipline involving unproven allegations. In many departments, only a small fraction of misconduct allegations result in a proven finding of guilt.
That's why it's important the public have access to these documents. Since law enforcement agencies rarely sustain allegations or discipline officers, this paper trail tends to evaporate rather quickly. But just because allegations aren't sustained doesn't mean the public shouldn't know about them. An officer with lots of allegations, even if few are sustained, is probably someone who abuses rights and regulations frequently.
The state appeals court ruling [PDF] says these records are subject to the law following the repeal of 50-a. And it's not even a close question. The state legislature made its intent extremely clear when it took that law off the books.
With respect to unsubstantiated complaints, in each of the three requests, the NCPD merely asserted in a conclusory fashion that it could withhold the documents based on considerations of privacy." In denying two of the requests, the NCPD opined that the recent legislative amendments were not intended to affect disclosure of such records. This opinion plainly is at odds with the legislative action. Upon repealing Civil Rights Law 50-a, the Legislature amended the Public Officers Law to specifically contemplate the disclosure of law enforcement disciplinary records," which it defines to include complaints, allegations, and chargesagainst an employee" (Public Officers Law 86[6][a]).
If the Legislature had intended to exclude from disclosure complaints and allegations that were not substantiated, it would simply have stated as much" (Matter of Friedman v Rice, 30 NY3d at 478). It did not, and instead included complaints, allegations, and charges" in its definition of disciplinary records, along with the disposition of any disciplinary proceeding" (Public Officers Law 86[6][d]), without qualification as to the outcome of the proceeding. Furthermore, the Legislature directed the types of information that shall and may be redacted from law enforcement disciplinary records prior to disclosure (see id. 87[4-a], [4-b]). Notably, unsubstantiated allegations or complaints are not among either the mandated or the permissible redactions (see id. 89[2-b], [2-c])
The other argument made by the NCPD - that the repeal of 50-a and the amendment of FOIL law is not retroactive - is even worse. According to the NCPD, no FOIL requester should be able to request any records created prior to the law's repeal in 2020. This is obviously absurd.
The petitioner made the subject FOIL requests in July 2020, after the legislative amendments were enacted, and, thus, the petitioner is not seeking retroactive application of the statutory amendments to a pending FOIL request. To the extent that the NCPD contends that the Legislature intended to exclude from disclosure any law enforcement disciplinary records that were created prior to June 12, 2020, it has offered no support for this proposition. By their nature, FOIL requests seek records that were generated prior to the request date. In amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature did not limit disclosure under FOIL to records generated after June 12, 2020, and we will not impose such a limitation ourselves.
So simple a cop could understand it... if they wanted to. The repeal of 50-a put these records back in the pool of documents that can be obtained by the public. It did not say all of these, except..." The alteration of the law definitely did not create a diverging timeline where records created prior to June 2020 are subject only to laws enacted prior to this date. That the NCPD would assume so suggests it's willing to blow tax dollars on presenting wishful thinking to multiple courts and judges. While that sort of thing is definitely a waste of public funds, then end result here ensures fewer dollars will be wasted on similar stupidity in the future.