Albany Times Union

Police fight release of files

After state allowed scrutiny of discipline records, some department­s withhold data

- By Brendan J. Lyons

ALBANY — Nearly three years after New York repealed a statute that for more than four decades had prevented the public scrutiny of police disciplina­ry records, many department­s across the state are continuing to block the disclosure of “open” or “unfounded” complaints against officers — and in some cases waging court battles in their efforts to keep those files secret.

The New York Civil Liberties Union is involved in most of the ongoing litigation challengin­g the policies of the State Police, state Department of Correction­s and Community Supervisio­n and numerous other law enforcemen­t agencies across New York. In many instances, the department­s are invoking a provision under the state Freedom of Informatio­n Law and arguing that the release of open or unfounded complaints would result in an “unwarrante­d invasion of personal privacy” for the officers involved.

But critics of those concealmen­t efforts say the Legislatur­e, when it repealed the 44-year-old statute in the wake of George Floyd’s murder, intended for nearly all complaints against police officers to be made public, even if they are deemed unfounded or are the subject of a pending investigat­ion.

Assemblyma­n Daniel J. O’donnell, a Manhattan Democrat, was a leading supporter of the legislatio­n that repealed the section of state Civil Rights Law that had shielded the release of police disciplina­ry records. After years of impasse, the measure was passed in June 2020 along with a series of other law enforcemen­t statutes that included a ban on chokeholds and the creation of a special unit in the state attorney general’s office to investigat­e deaths of civilians during encounters with police.

In an interview Monday, O’donnell said that after the Legislatur­e amended state law to specify the breadth of police disciplina­ry records that would be made public, it “was not my intent” to have unfounded, unsubstant­iated or pending disciplina­ry complaints against police officers withheld on privacy grounds.

“The ‘substantia­tion’ of the complaint was irrelevant to the public’s right of access to it,” O’donnell said. “In the year

that we passed it ... the (New York) Police Department found zero allegation­s of racial profiling to be ‘substantit­ated,’ which tells me rather clearly their process for getting (a case) substantia­ted is severely flawed.”

In a recent court ruling on the matter, a state Supreme Court justice in Rensselaer County ordered the city of Troy to turn over a trove of police disciplina­ry records to the NYCLU, including records of unsubstant­iated and unfounded complaints. In his ruling, Justice Richard J. Mcnally Jr. noted that a state appellate court in western New York had overturned two lower court decisions which would have allowed the Rochester and Syracuse police department­s to issue blanket denials for similar records sought by the NYCLU.

“Both cases hold that the personal privacy exemption does not allow municipali­ties to categorica­lly withhold police personnel records,” Mcnally wrote, calling Troy’s response another “blanket denial” and ordering the city to “locate all open and unsubstant­iated claims of misconduct, by officers with the Troy Police Department (and) ... identify those law enforcemen­t disciplina­ry records or portions thereof that may be redacted or withheld as exempt.”

The rulings do not require the city of Troy or other police department­s to immediatel­y turn over records on unfounded or unsubstant­iated complaints. Rather, the agencies must review any responsive records and make

them available “subject to any redactions or exemptions pursuant to a particular­ized and specific justificat­ion for exempting each record.”

The State Police were sued in state Supreme Court in Albany two years ago by the Police Benevolent Associatio­n of the New York State Troopers, which represents thousands of uniformed troopers, over what the union said was an improper policy to disclose records of unsubstant­iated complaints.

But the agency denied that was its policy. “The New York State Police FOIL policy is to review each FOIL request on a case-bycase basis, and where appropriat­e, apply exemptions as authorized by law,” said Deanna Cohen, a spokeswoma­n for the agency.

Last year, a judge dismissed the case filed by the troopers’ union, which had argued that State Police were releasing all unfounded or unsubstant­iated complaints against troopers under a secret directive from former Gov. Andrew M. Cuomo’s office. The judge noted that State Police affirmed they were releasing those records only on a caseby-case basis and that there was no documentat­ion that Cuomo’s office had issued that directive or that the agency was following it.

Still, State Police do invoke the “unwarrante­d invasion of privacy” provision to deny access to pending complaints or others they have determined were unfounded. Recently, the agency declined to release its records on an open case involving sexual harassment allegation­s filed against a former high-ranking PBA official. In its denial, the agency said the other disciplina­ry

records, without providing any detail, were “being withheld on the grounds that disclosure would constitute an unwarrante­d invasion of personal privacy.”

Last week, the NYCLU won a similar decision rejecting the blanket denial of unfounded or unsubstant­iated complaints in a case filed against the New York City Department of Correction. That decision, by the state appellate division’s First Department, cited the recent Fourth Department appellate rulings involving the Syracuse and Rochester police department­s.

Bobby Hodgson, a supervisin­g attorney with the NYCLU, said the Syracuse Police Department did not seek permission to appeal their loss to the Court of Appeals. Rochester has requested permission to appeal the decision to the state’s highest court, and that request is pending.

The NYCLU has additional cases pending against the State Police, the state Department of Correction­s and Community Supervisio­n and the Suffolk County Police Department. Hodgson said the appellate rulings are “a significan­t victory” that had “short-circuited this blanket withholdin­g that was happening across the state.”

In the NYCLU’S case against the State Police, Hodgson said, the agency turned over a heavily redacted spreadshee­t that summarized two decades’ worth of disciplina­ry cases but with the identities of the officers redacted.

“We asked for all of the disciplina­ry records from the past 20 years,” he said. “And they have not turned over any of those underlying records . ... So we’re challengin­g that redaction.”

Hodgson acknowledg­ed that the challenge now will be to get unredacted records from police agencies that could still withhold open or unfounded complaints based on individual­ized reviews of those files. Hodgson said the privacy provisions often being invoked as a basis for denial were designed to protect the release of informatio­n such as officers’ home addresses, Social Security numbers or medical records, not informatio­n about allegation­s of excessive force or other misconduct.

“We’re going to have to fight that out in the courts, unless the Legislatur­e clarifies (the law),” he said.

There is also a wide discrepanc­y in how different police department­s handle disciplina­ry cases or conduct internal investigat­ions. Some small department­s may assign an officer or supervisor in a part-time role of conducting an internal investigat­ion. Larger agencies, such as the State Police, have full-time investigat­ors and supervisor­s assigned to conduct the probes.

In addition, there is no legal definition of how law enforcemen­t agencies must maintain personnel files — or what goes in them and for how long. The lack of uniformity in documentin­g and conducting internal investigat­ions of misconduct has been revealed as some prosecutor­ial agencies have struggled to gather disciplina­ry records from multiple police department­s, including some that may not cooperate.

 ?? ?? O’DONNELL
 ?? Will Waldron / Times Union archive ?? A sign calling for the repeal of 50-a is held during a vigil to protest against police brutality and inequality in the wake of the death of George Floyd on June 8, 2020, at the Four Corners in Delmar. The controvers­ial 50-a law shields law enforcemen­t personnel records from public.
Will Waldron / Times Union archive A sign calling for the repeal of 50-a is held during a vigil to protest against police brutality and inequality in the wake of the death of George Floyd on June 8, 2020, at the Four Corners in Delmar. The controvers­ial 50-a law shields law enforcemen­t personnel records from public.

Newspapers in English

Newspapers from United States