Promote Police Transparency with the Repeal of CRL 50-a

REPORT ON LEGISLATION BY THE CIVIL RIGHTS COMMITTEE; CRIMINAL COURTS COMMITTEE; COMMUNICATIONS & MEDIA LAW COMMITTEE; CORRECTIONS & COMMUNITY REENTRY COMMITTEE; CRIMINAL JUSTICE OPERATIONS COMMITTEE; DIVERSITY, EQUITY & INCLUSION COMMITTEE; DRUGS & THE LAW COMMITTEE; GOVERNMENT ETHICS & STATE AFFAIRS COMMITTEE; IMMIGRATION & NATIONALITY LAW COMMITTEE; JUVENILE JUSTICE COMMITTEE; LESBIAN, GAY, BISEXUAL, TRANSGENDER & QUEER RIGHTS COMMITTEE; MASS INCARCERATION TASK FORCE; NEW YORK CITY AFFAIRS COMMITTEE; PRO BONO & LEGAL SERVICES COMMITTEE; AND SEX & LAW COMMITTEE

A.2513 (M. of A. O’Donnell)
S.3695 (Sen. Bailey)

AN ACT to repeal Civil Rights Law 50-a to allow for the public disclosure of police records relating to police misconduct.

THIS BILL IS APPROVED*

OVERVIEW

Transparency is vital to regulating police powers in a democracy. According to the U.S. Supreme Court, when police departments are “under the eyes of an alert public opinion,” they will deter police misconduct with effective internal policies and discipline.^[1]  In New York State, however, no matter how “alert” the public is, Civil Rights Law 50-a (CRL 50-a) shrouds certain types of evidence from the public—i.e., “personnel records,” even if such records reflect police misconduct.  Indeed, a New York State appellate court recently held that CRL 50-a prevents the disclosure of Civilian Complaint Review Board (CCRB) records regarding whether police officers have been accused of misconduct, whether those accusations have been substantiated, and even whether officers have been penalized for substantiated misconduct.^[2]  

Because of overbroad interpretations of CRL 50-a, public awareness of police misconduct is stymied. And without transparency, officers may be less accountable to the communities they serve.  The Civil Rights Committee and Criminal Courts Committee of the New York City Bar Association issue this report in support of pending legislation to repeal CRL 50-a.

THE HISTORY OF CRL 50-A

In the 1970s, a national movement for open government gained momentum.^[3]  New York’s first Freedom of Information Law (FOIL) was passed in 1974, and in 1977 it was expanded to include access to all public records.  The 1977 FOIL expansion sought to “achieve the greatest magnitude of openness in government without sacrificing personal and privileged information” to “help instill in the citizens of the state greater trust and confidence in the governmental institutions which are playing an increasingly important role in our daily lives.”^[4] 

Despite this movement for open government, the New York legislature in 1976 passed CRL 50-a to, among other things, prevent “harassment” by criminal defense attorneys who sought to impeach officers with unsubstantiated prior bad acts.^[5] CRL 50-a  provides that “all personnel records used to evaluate continued employment or promotion, under the control of any police agency . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.”^[6] By providing blanket protection of police officers from impeachment on cross examination, however, CRL 50-a undermines what New York’s Court of Appeals recently called the “unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination.”^[7]

Delaware is the only other state in the country that also has a law comparable to CRL 50-a that restricts the scope of law enforcement information available to the public.^[8] According to former Senator Frank Padavan, the chief sponsor of the law, CRL 50-a was never intended to block disclosure of police misconduct from the public.^[9]  Its original purpose was to prevent disclosure of “unverified and unsubstantiated” civilian complaints—not to prevent disclosure of substantiated civilian complaints.^[10] Indeed, CRL 50-a was, until 2014, not widely known. It was not even a part of the public’s broader police reform agenda. Instead, CRL 50-a mainly preoccupied lawyers who had to meet its high standard to obtain a subpoena for an officer’s “personnel records” for litigation.^[11]

In 2014, however, the death of Eric Garner led to renewed focus on CRL 50-a and how its broadened interpretation shields police officers from public accountability and impedes racial justice. Mr. Garner, an African American man who was allegedly selling loose cigarettes outside of a convenience store in Staten Island, was placed in a chokehold by former Officer Daniel Pantaleo—a maneuver banned by the NYPD.^[12] Mr. Garner died after repeatedly shouting “I can’t breathe.”^[13] Efforts by Mr. Garner’s family to obtain Officer Pantaleo’s disciplinary records through FOIL requests to the NYPD were denied under CRL 50-a. As the Garner case exemplifies, CRL 50-a effectively prioritizes protecting officer misdeeds over transparency and further divides communities of color from the police departments that are meant to protect them. According to an analysis by the Washington Post, since July 2015, the rate at which Black Americans are killed by police is more than twice as high as the rate for white Americans, despite accounting for 13% of the population.^[14] Since Mr. Garner’s death, several legal organizations, including the New York Civil Liberties Union and The Legal Aid Society, have been fighting to remove the 50-a cloak on police misconduct. It also bears mentioning that until 2016, journalists had access to information about administrative cases related to law enforcement disciplinary issues, but the NYPD later changed its practices, citing CRL 50-a.^[15]

The recent death in 2020 of George Floyd, an African American man killed by a Minneapolis police officer, has sparked massive protests in cities across the United States and abroad calling for an end to police brutality and demanding increased transparency and accountability for law enforcement.^[16] In circumstances that echoed Eric Garner’s death, Mr. Floyd died of asphyxiation after a police officer refused to remove his knee from Mr. Floyd’s neck as he lay face down in handcuffs repeatedly pleading “I can’t breathe.”^[17] In Minnesota, police disciplinary records are accessible to the public, and reports that the officer responsible for Mr. Floyd’s death was the subject of at least a dozen police conduct complaints fueled calls for police reform.^[18] In New York, the event has triggered renewed calls from protesters to repeal CRL 50-a.

JUDICIAL INTERPRETATION OF CRL 50-A

In 1999, the Court of Appeals decided In re Daily Gazette Co. v. City of Schenectady,^[19] a case in which the local daily paper in Schenectady, New York, sought the identities of eighteen officers involved in off-duty misconduct and the full files pertaining to their discipline following a drunken off-duty brawl during a bachelor party.^[20] The court in Daily Gazette held that records pertaining to police officer off-duty misconduct were exempt from disclosure under FOIL.  Notably, it expressly left room for the discovery of on-duty misconduct.^[21]

But in a 2018 decision, in Matter of New York Civil Liberties Union v. New York City Police Department, the Court of Appeals affirmed the holding of the First Department that CRL 50-a prevented disclosure of decisions made by the NYPD commissioner in cases of police misconduct initiated by the Civil Complaint Review Board.^[22]

In addition to public disclosure being stymied by the courts, litigants have struggled to discover police misconduct even with a judicial subpoena. CRL 50-a puts the burden on lawyers to demonstrate how material they cannot access is relevant to their case. Furthermore, police disciplinary records fall into a “doctrinal crack” insofar as such records may not be related to any specific case and, therefore, may elude discovery by the defense, even though such information should, under Brady v. Maryland, be subject to disclosure by prosecutors.^[23] Given the inherent conflict of interest in prosecutors investigating the misconduct of the officers they rely on, along with a growing body of jurisprudence that casts an increasingly wide net over the types of records that are exempt from disclosure, substantiated evidence of misconduct by police officers must be available to defense attorneys and the public by means other than relying solely on private investigation and disclosure by prosecutor’s offices.^[24] 

HOW CRL 50-A PREVENTS ACCOUNTABILITY FOR POLICE MISCONDUCT

More than any other government official, police officers interact with the public every day in life-changing ways. They patrol the streets, initiate contact with members of the public, and conduct frisks, searches, and arrests. As the New York State Committee on Open Government explained, “[t]he Freedom of Information Law (FOIL) today affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.”^[25]In twelve states, the public has the right to fully access officers’ on-duty misconduct records.^[26] There is no evidence that officers in those states are any less safe or any less capable of testifying in court to defend their conduct than officers in New York.

Robert Lewis, a reporter with WNYC, described CRL 50-a as “a huge obstacle” when journalists attempt to report stories about police misconduct.^[27] Lewis explained,

After the death of Eric Garner a lot of people, including me, wanted to know about the officer involved in the incident[, Daniel Pantaleo]. Did he have a history of using excessive force? Had he been disciplined before? Should he have been on the street? But those questions were virtually impossible to answer in large part because of that law…Aggregate data is helpful. But a deeper analysis and examination of a system is often only possible if the public can examine the disciplinary history of specific officers.^[28]

In 2017, a CCRB^[29] staff member leaked Officer Pantaleo’s complaint history to the press. It showed that Pantaleo had four prior substantiated complaints for abusive stops and searches. The leak further showed that “the CCRB pushed for the harshest penalties it has the authority to recommend for all four substantiated allegations” but that “the NYPD, which is not required to heed the CCRB’s recommendations, imposed the weakest disciplinary action” for two violations, and modified penalties for the other two violations.^[30] This was not an anomaly: according to a 2015 analysis by the Office of the Inspector General for the NYPD, of 104 excessive force complaints substantiated by the CCRB, the NYPD imposed no discipline in 36% of those cases.^[31]  The same report also criticized the use-of-force statistics published by the NYPD each year, which rely on self-reporting by individual officers to indicate if force was used in incident reports. Three years later, the Office of the Inspector General issued an updated report, finding that officers were still routinely under-reporting their use of force.^[32] The public cannot rely on self-reporting by individual officers to understand the scope of police misconduct and to hold officers accountable.

Interpretations of CRL 50-a have become increasingly broad and go far beyond the statute’s initial purpose of protecting police officers from harassment and undue invasions of their privacy; this, in turn, fuels the mistrust between communities and the NYPD officers pledged to protect them. Transparency is necessary to ensure the NYPD is held publicly accountable for whether and to what extent it disciplines officers found to have committed serious misconduct, and to prevent officers like Daniel Pantaleo from repeatedly engaging in serious misconduct. Federal authorities have recognized the importance of transparency as a pillar of the criminal justice system: President Obama’s Task Force on 21^st Century Policing encouraged police departments to “embrace a culture of transparency” and to “regularly post on the department’s website information about stops, summonses, arrests, reported crime, and other law enforcement data aggregated by demographics.”^[33] CRL 50-a, as interpreted by New York’s courts, is contrary to all of these efforts.

In addition, CRL 50-a jeopardizes recent police reform measures, like body cameras, aimed at ensuring public accountability for the on-duty conduct of police officers. In its 2016 Annual Report, the New York State Committee on Open Government warned that “under current application of §50‑a, many law enforcement agencies would surely contend that a recording can, in the words of §50-a, be ‘used to evaluate performance toward continued employment or promotion’ and, therefore, is exempt from disclosure. If the video can only be seen by the internal affairs unit within a police department, and there is no public disclosure, a primary purpose of the body camera would be defeated. The trust in law enforcement officers would be diminished and mistrust would grow.”^[34] 

That warning proved prophetic as law enforcement agencies have repeatedly invoked CRL 50‑a as a basis for blocking disclosure of body camera footage.^[35] In 2017, for example, an inmate at Green Haven Correctional Facility sought a video recording of an altercation with a corrections officer.  The state Department of Corrections and Community Supervision denied his request on grounds that the video was a document “used to evaluate the performance of an officer.”^[36] Similarly, the Patrolmen’s Benevolent Association of New York has argued that body camera footage amounts to a “personnel record” barred from disclosure under CRL 50-a, because the body camera program was partially designed for performance evaluation purposes.^[37] While the First Department has declined to extend 50-a protections to body camera footage, holding that “the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional purposes,”^[38] the issue has not yet been decided by the Court of Appeals.

THE CITY BAR URGES REPEAL OF CRL 50-A

CRL 50-a has been interpreted so broadly that police misconduct in New York State is more secretive than any other state in the nation.^[39] “The people,” wrote one editorial board, “have a right to know when officers are accused of transgressions, and what investigations find . . . A law that keeps such information from the public is a travesty, and must be changed.”^[40]  The City Bar agrees, and we urge the Legislature to repeal CRL 50-a for the following reasons.

First, New York is one of only two states in the nation that gives specific statutory protection to officers’ records.^[41] Among these two states, New York’s CRL 50-a has the highest standard of scrutiny. By repealing CRL 50-a, New York would join Maine, Washington, Minnesota, Wisconsin, Ohio, Alabama, Georgia, Connecticut, Utah, Arizona, Florida, and California in promoting transparency of police disciplinary systems. We note that since this Report was first issued in May 2018 and the City Bar joined the call of many organizations across the state of New York to repeal CRL 50-a, the state of California passed their Right To Know Act, which gives the public the right to access three categories of records related to investigation and discipline of police officers (records related to any incident where a law enforcement officer fired a gun at a person or used force that resulted in serious injury or death; records related to incidents where the agency found that an officer committed sexual assault against a member of the public; records related to incidents where the agency found that an officer engaged in dishonesty in the investigation, reporting, or prosecution of crime or police misconduct).[42] There is no evidence that transparency endangers officers in those states or inhibits the administration of justice.

Second, CRL 50-a should be repealed because the concerns of the law’s original sponsors over the privacy of police officers are adequately addressed by way of other FOIL exceptions.^[43] For example, New York’s Public Officers Law already prevents records from being disclosed when they would constitute an unwarranted invasion of personal privacy, are compiled for law enforcement purposes or endanger the life or safety of any person, in addition to other circumstances. Public Officers Law § 87(2)(b), (e), (f).^[44]

Third, judges are already charged with restraining lawyers from asking irrelevant, immaterial and abusive cross examination questions. The Court of Appeals recently laid out a clear framework for attorneys to follow when cross-examining officers about prior misconduct.^[45] The first step is demonstrating a “good faith basis” for the questions. Attorneys may not rely in good faith on allegations that have been disproven. Attorneys must then demonstrate that the specific allegation is relevant to the witness’s credibility. Even then, the Court ruled that judges still have discretion in most cases to determine whether the inquiry will “confuse or mislead the jury”.^[46]

Fourth, CRL 50-a should be repealed because simply revising its language will not address concerns that police departments will continue to seek, and courts will grant, a broad interpretation of what types of records qualify as “personnel records” that can be protected from disclosure.^[47] Merely tweaking the definition of “personnel records,” as one previous bill proposed,^[48] would not prevent widespread categorizing of information as “personnel” files. Members of the public or media may not have the resources to litigate FOIL cases in the courts and challenge these interpretations. CRL 50-a has become a sword wielded by police departments against transparency and accountability, rather than a legitimate shield against abusive litigation tactics, as was originally intended.

Fifth, without the repeal of CRL 50-a, recent police reform efforts, such as police body cameras, could be rendered wholly ineffective.^[49] The New York State Committee on Open Government recently warned that, under a broad interpretation, CRL 50-a may prevent public disclosure of footage from body cameras used to monitor their interactions with the public.^[50] While some courts have thus far rejected police claims that body camera footage is protected by CRL 50-a, the issue remains an open question.

For all of these reasons, the City Bar urges the Legislature to repeal CRL 50-a.  As the bill’s sponsors memo states, “the evolution of § 50-a has defeated [FOIL’s] goal of accountability and transparency.”^[51] New York should join other states and prioritize public transparency of police misconduct to ensure accountability and racial equity. Repealing CRL 50-a will be one step in the direction toward combating the searing legacy of systemic racism that continues to mar our country and our state.

Updated and Reissued June 2020**