Key NYS court rejects secrecy for police discipline records

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.

The repeal of Section 50-a of the state Civil Rights Law in June 2020, which had shielded all police discipline records from public view, was intended to offer the public, including journalists, a way to scrutinize the quality of police departments’ self-policing.

“It goes to the internal disciplinary process,” explained state Sen. Jamaal Bailey, D-Bronx, at a Senate floor debate during the repeal efforts.

Of a police department’s process and findings, he said, “We don’t know how they came to that determination. We don’t know what information was compiled about that alleged incident. We don’t know how it was founded or unfounded.”

The case decided last Wednesday involved the efforts of Newsday, the Long Island-based news organization, to obtain disciplinary records from the Nassau County Police Department. The department had denied Newsday’s public records request on the grounds that unsubstantiated discipline records could be categorically withheld to protect officers’ privacy.

That determination was reversed with the Second Department’s ruling, which also held that Nassau officials could not conceal discipline records created before Section 50-a was repealed. Whether pre-repeal records or unsubstantiated records would ever see the light of day has remained the two most pressing issues since the repeal went into effect in June 2020.

Trial courts have split on these questions, but two other state appeals courts have already ruled in favor of disclosure. The Second Department’s decision marks yet the latest appellate ruling furthering access to police discipline records.

The Second Department has been described as the busiest appellate court in the country, covering an outright majority of the state’s population and adjudicating most of New York’s appellate cases. The reach of the Second Department’s jurisdiction underscores the impact of its ruling last week.

Daniel Novack, co-chair of the New York State Bar Association’s committee on media law, explained that withholding even unsubstantiated records from the public “would make it impossible for the public to know if (internal) investigations are being properly conducted.”

The Court of Appeals, New York’s top court, has agreed to review this issue in an upcoming sitting.

Gannett Co., Inc., the parent company of The Journal News/lohud and the USA Today Network New York, has filed several lawsuits in the face of denials of access to discipline records from police departments across the state.

In some of these cases, trial-court judges have employed reasoning that was specifically rejected by the Second Department’s decision last week. For example, in a 2022 ruling denying access to Greenburgh police records, Westchester Supreme Court Justice Robert Neary held that unsubstantiated records and pre-2020 records could be automatically withheld. Gannett has since appealed that ruling.

Gannett is also pursuing a similar case against the Mount Vernon Police Department.

Asher Stockler is a reporter for The Journal News and the USA TODAY Network New York. You can send him an email at astockler@lohud.com. Reach him securely: asher.stockler@ protonmail.com.