Before he leaves office next month, Commissioner Bratton should reconsider ill-advised NYPD policy.
Suddenly applying excessively stringent reading of a decades-old state statute, the NYPD is denying New Yorkers access to the most basic information about disciplinary measures taken against cops. The lawyers who counseled the NYPD to stop the long routine disclosure of punishment outdid even attorneys for the Patrolmen’s Benevolent Association with an extraordinary interpretation of the law.
Before he leaves office next month, Commissioner Bill Bratton must consider the implications of the ill-founded legal advice the department has acted on.
For example, its logic commands the NYPD to maintain secrecy when officers are placed on modified duty — for example after a controversial fatal shooting.
If the department is going to seal a paper listing of disciplinary actions, by all rights it should also stay mum about action taken against an officer who is the subject of intense public interest.
The NYPD began including disciplinary actions in so-called Personnel Orders, which also include information such as promotions and transfers.
The department posted the documents on a clipboard in the public information office, where the media regularly inspected it. The PBA did not complain then and has never complained.
Recently, however, a freedom of information request seeking disciplinary records focused the NYPD’s legal minds on the Personnel Orders. Out of the blue, they brought to bear section 50-a of the state Civil Rights Law.
Without a court order, that statute bars release of all “personnel records used to evaluate performance toward continued employment or promotion” of cops, firefighters and correction officers.
The department maintains that the Civil Rights Law covers the listing of disciplinary actions in the Personnel Orders. We differ as strenuously as possible.
The state’s highest court has interpreted this horribly drawn statute to clearly indicate that the NYPD lacks the grounds for imposing confidentiality.
The court requires two standards for keeping secret the personnel records of cops, firefighters and correction officers.
The first is that the records are used, as the law states, “to evaluate performance toward continued employment or promotion.” The information contained in the Personnel Orders is merely a neutral listing of disciplinary actions — and is not used to evaluate anyone for better or worse.
The court’s second requirement is that a police department must show that disclosing the information will subject a cop to “time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action.”
Never have the Personnel Orders raised such a concern.
In fact, former Commissioner Ray Kelly tells the Daily News that he wanted to stop publishing officer discipline but was told that the law barred such a move — the exact opposite of the NYPD’s new stance. The law has played out in many different ways. When public defenders sought the history of complaints filed against a correction officer by inmates, the Court of Appeals rules that, yes, the complaints could be used to evaluate the officers performance and, yes, they “could well be used in various ways against” the officer.
The NYPD’s Personnel Orders are a very different animal.
In another case, a newspaper sought access to records concerning the purchase through official channels of “military-style assault rifles for personal, nonofficial use by a number of individual police officers” in Albany.
The court said, yes, the so-called gun tags could be used to evaluate the officers’ performance but it still ordered their release because the Albany police department had not shown that the gun tags could be used in harassing court cases.
The Personnel Order lists are not used to evaluate performance, nor are they likely to show up for harassment purposes in a court action.
Shutting access to the orders impedes transparency at a time when police transparency is critically needed. Still worse, the lawyer’s fiat boosts mistrust about the NYPD’s good faith in holding wayward officers to account.