The NYPD claims that it just realized that by releasing discipline records of its officers to the press for the last forty years, it has been violating New York Civil Rights Law 50-a. They claim that 50-a “prohibits” them from releasing discipline records, and so they will no longer tell the public when they do – or more importantly, when they do not – discipline officers.
The NYPD’s claim is patently false in three ways:
(1) The NYPD has been well aware of 50-a since its inception: They lobbied for its creation for the express purpose of concealing discipline records, and they have routinely used it to attempt to quash requests for those records over the last forty years. Footnote 24 in Defending the Public: Police Accountability in the Courtroom lists multiple correspondence from NYPD officials heavily lobbying for the creation of 50-a in order to conceal discipline records. And a quick google scholar search of “NYPD” and “50-a” yields dozens of results about the NYPD attempting to quash Freedom of Information requests by invoking 50-a, such as in People v. Cook, for example, decided just last year. In that case, as in most, the court held that 50-a does not exempt discipline records from disclosure, which brings us to…
(2) 50-a does not exempt discipline records from disclosure unless the NYPD can demonstrate that the records would create a “substantial and realistic potential…for the abusive use against the officers.” That holding is from a particularly pertinent case on the issue, Luongo v. CCRB, regarding the discipline records of Daniel Pantaleo, who killed Eric Garner, quoting Daily Gazette v. City of Schenectady:
The essential question under CRL 50-a, as established by the Court of Appeals in Daily Gazette Co. v. City of Shenectady, 93 NY2d 145, 159 (1999), is whether the agency seeking to avoid disclosure of the personnel record demonstrates a “substantial and realistic potential of the requested material for the abusive use against the officer.”
(3) Finally, even if a particular record is exempt, the NYPD is not “prohibited” from releasing it. Capital Newspaper v. Burns, (quoting Short v. Board of Managers) states that even if records fit an exemption to the rule that all government records are presumed public, the government agencies in charge of those records still have the discretion to release them:
Finally, we note that, while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provisions contains permissive rather than mandatory language, and it is within the agency’s discretion to disclose such records, with or without identifying details, if it so chooses.
The NYPD may very well stop telling the public when they do, and when they do not, discipline officers. But no one should be fooled into believing that they have to in order to abide by the law. Everyone should be well aware that this is their choice, and almost always in violation of the Freedom of Information Law.
Also published on Medium.