Albany Times Union
Police fight release of files
After state allowed scrutiny of discipline records, some departments withhold data
ALBANY — Nearly three years after New York repealed a statute that for more than four decades had prevented the public scrutiny of police disciplinary records, many departments across the state are continuing to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But critics of those concealment efforts say the Legislature, when it repealed the 44-year-old statute in the wake of George Floyd’s murder, intended for nearly all complaints against police officers to be made public, even if they are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Assemblyman Daniel J. O’donnell, a Manhattan Democrat, was a leading supporter of the legislation that repealed the section of state Civil Rights Law that had shielded the release of police disciplinary records.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.