After Section 50-a repeal, New York police unions are fighting in court to keep misconduct records secret. So far, they’re losing.
In October, a New York trial court ruled that police and firefighters unions in Buffalo, New York, could not block the release of records documenting allegations of misconduct made against police officers, firefighters and corrections officers.
The unions had argued that the disclosure of misconduct records would harm officers’ privacy rights and make unsubstantiated allegations public. But the Reporters Committee for Freedom of the Press, joined by 26 news media organizations, countered that the public’s right to know is a fundamental right — and that New York law now allows for the disclosure of records concerning police misconduct and discipline.
“The abuse of power by public servants is a matter of abiding public concern,” the Reporters Committee wrote in a friend-of-the-court brief filed in August. “This is particularly true with regard to police misconduct, an issue that the killing of George Floyd by a Minneapolis police officer with numerous past misconduct complaints has brought to the forefront of the public’s consciousness.”
The ruling in the Buffalo case is the latest in a series of recent decisions involving public access to officer misconduct records following this summer’s repeal of Section 50-a of New York’s Civil Rights Law, a controversial provision long used to shield police misconduct records from public scrutiny.
The repeal of Section 50-a set the stage for court battles between police and firefighters unions and those who seek to improve transparency around public officer misconduct. So far, courts have largely affirmed the need for greater transparency in three cases, siding with arguments Reporters Committee attorneys laid out in legal briefs.
Before the ruling in the Buffalo case, a federal appeals court allowed the New York Civil Liberties Union to move forward with releasing over 300,000 previously unpublished complaints about the conduct of New York City police officers that it obtained through a public records request soon after the repeal of Section 50-a. The next day, a federal district court largely rejected police and firefighters unions’ effort to prevent the mayor of New York and other city entities from publishing certain allegations of police misconduct, clearing the path for the release of some, but not all, records.
The district court’s ruling is now on appeal, and Reporters Committee attorneys have once again weighed in, this time supporting a nonprofit organization’s effort to access additional records previously blocked by the lower court — and arguing that “Neither the Unions nor the City possess the authority to bargain away the public’s statutory right to access public records.”
The repeal of Section 50-a — and the court decisions that have followed so far — represent an important step toward greater transparency in law enforcement, as well as an opportunity for journalists and community members to use these records to identify patterns of public officer misconduct and investigate instances of harm.
The long history of Section 50-a
Enacted in 1976, Section 50-a was originally created to protect public officers from being extensively cross-examined about their employment histories in criminal defense trials. Specifically, the provision prevented the disclosure of personnel records “used to evaluate performance toward continued employment or promotion.”
Over the years, however, the provision expanded in scope, effectively shielding misconduct records for police officers, firefighters and corrections officers from the public. As Reporters Committee Legal Director Katie Townsend wrote in a op-ed published last year in the New York Daily News, “Over the last four decades, the law has been repeatedly invoked to override the general presumption of government transparency embedded in New York’s open records law, as government agencies and courts have applied it to circumstances that go far beyond its original purpose.”
In 2016, a coalition of media organizations led by the Reporters Committee urged a New York appeals court to order the disclosure of disciplinary records for Daniel Pantaleo, the white NYPD officer who held Eric Garner in a chokehold, causing his death in 2014. The Reporters Committee asked the court to interpret Section 50-a narrowly, to allow the news media to report on the conduct of police officers using public records.
But the appeals court ruled in 2017 that Section 50-a allowed the NYPD to keep Pantaleo’s records secret. It wasn’t until a whistleblower leaked Pantaleo’s disciplinary record that the public discovered that the officer was the subject of seven disciplinary complaints and 14 individual allegations at the time of Garner’s death.
The next year, BuzzFeed News published a collection of disciplinary records of 1,800 NYPD employees that found, among other violations, at least 250 employees faced accusations of using excessive force, threatening someone, getting into a fight or firing their gun unnecessarily. Many officers had received minor penalties for these actions, such as losing five vacation days.
“Records like these — currently blocked from disclosure by Section 50-a — are precisely the information that is crucial for the public to have,” the Reporters Committee argued in written testimony submitted in 2019 to the New York Senate Standing Committee on Codes. “While Section 50-a was enacted to protect public employees from unwarranted harassment, it has increasingly been used to obstruct transparency — and thus accountability — to the public about law enforcement misconduct, going far beyond its original purpose.”
As protests against police brutality and systemic racism erupted nationwide this summer following the death of George Floyd, organizations such as Communities United for Police Reform and the Reporters Committee continued their advocacy against Section 50-a, with the Reporters Committee urging New York lawmakers to immediately repeal the provision. “Repealing 50-a is a necessary step not only to ensuring police accountability,” the Reporters Committee wrote in a June letter to lawmakers, “but also to restoring trust between law enforcement and the communities they serve.”
Days later, New York lawmakers repealed the law.
“Certainly, the protests of this past summer have made clear that there is a need for a very critical eye toward law enforcement at all levels across the country,” said Madeline Lamo, media litigation fellow at the Reporters Committee for Freedom of the Press. “Even seemingly progressive cities like New York and Minneapolis have systemic problems that transparency will help solve.”
Unions fight repeal of Section 50-a in court
Since the repeal of Section 50-a, police and firefighters unions have moved quickly to challenge the release and publication of officer disciplinary records in court, arguing that disclosing allegations of misconduct will harm officers’ personal privacy.
In the Buffalo case, for example, the police union contended that other law enforcement professionals, such as lawyers and judges, are protected from the disclosure of unsubstantiated accusations. In a friend-of-the-court brief, however, the Reporters Committee highlighted that the law does not grant police officers secrecy for records relating to disciplinary proceedings.
“Police are unique in that they’re the people in our society who are allowed to carry guns and use violence,” said Michael Higgins, assistant director of the Civil Rights and Transparency Clinic at the University at Buffalo School of Law, who served as local counsel for the Reporters Committee’s friend-of-the-court brief. “The legislature recognizes that there’s an increased interest in access to their misconduct records. Are police agencies effectively responding to complaints? Are they adequately adjudicating them?”
Access to misconduct records can also reveal patterns in law enforcement behavior. When California repealed a similar state law in 2019, records revealed that some police officers accused of misconduct were moving between departments, avoiding substantial disciplinary penalties.
Reporters have used these records to publish important stories about patterns of misconduct and individual instances of harm. In a friend-of-the-court brief filed in U.S. District Court for the Southern District of New York, the Reporters Committee argued that the repeal of Section 50-a creates a unique opportunity for members of the news media to analyze and amplify data about policing.
For instance, the Invisible Institute’s Citizens Police Data Project documented more than 247,000 allegations of police misconduct in Chicago. The project identified that misconduct spreads when new officers are exposed to the problematic behaviors of other officers. After the publication of this data, the state of Illinois and city of Chicago entered a consent decree that implemented an “early intervention” program to “proactively identify at-risk behavior by officers” in an effort to stem the ripple effect of officer misconduct.
This kind of reporting “is about identifying systemic flaws to work towards healing, increased public trust, and building better systems and stronger communities,” Lamo said.
Moving forward, the fight for transparency will likely continue in the courts. Currently, 23 states and the District of Columbia have laws preventing the full disclosure of police officers’ disciplinary history. In New Jersey, the Reporters Committee is urging the legislature to pass a bill that would make law enforcement disciplinary records accessible to the press and public. And in Delaware, which is now the only state where law enforcement officers’ disciplinary records are specifically shielded from public disclosure in their entirety, the Legislative Black Caucus and state attorney general have proposed changes to the state code that blocks misconduct records from being released to the public.
For now, Higgins says the court decision in Buffalo sets a minimum threshold for releasing these kinds of records about officer misconduct. “What it doesn’t resolve,” he said, “is all of the other layers that we’re going to have to continue to fight to get these specific records — all the day-to-day mechanics of techniques that police agencies might use to hide these records.”
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.
AP Photo by Frank Franklin II