Responding to the mass protests following George Floyd’s killing and other police violence, the New York State Legislature on Tuesday voted to repeal a 44-year-old law that has long been blamed for a lack of police accountability in the state, and Gov. Andrew Cuomo signed it Friday.
Civil Rights Law 50-A was originally enacted to protect the personnel files of police officers, firefighters, and correctional officers from disclosure, but courts later interpreted it to prohibit disclosure of virtually everything related to a police officer’s employment — including disciplinary records.
Without 50-A in the way, law enforcement agencies and police departments across the state should release as much information as possible regarding uses of force and sensitive incidents to ensure effective oversight by the public and elected officials. This transparency is also critical to winning and maintaining the public’s trust, without which law enforcement cannot effectively serve their communities.
As is the case with Minneapolis police officer Derek Chauvin, who is reported to have had a long disciplinary record before his deadly encounter with Floyd, many other needless deaths at the hands of police involved officers who had hidden histories of misconduct, such as the incidents that caused the deaths of Tamir Rice, Laquan McDonald, and Eric Garner.
Because of 50-A, the public, press, and even victims of police misconduct often could not learn about the details, investigative findings, or at times even the identities of officers involved in misconduct allegations.
Now, a new law implements the total repeal of 50-A while modifying a few other provisions of New York’s Freedom of Information Law (FOIL), a powerful tool long used by activists, journalists, researchers, and citizens for government transparency and accountability.
The new legislation squarely defines “law enforcement disciplinary records” as a category of public records that can be disclosed under FOIL. It also specifies the truly personal information state agencies can withhold — like social security numbers and medical information — which should allay any fears of putting officers’ legitimate privacy concerns at risk.
The only disciplinary records that law enforcement would be permitted to keep secret are those that involve a technical infraction, defined as a minor violation of the internal rules of a department — for example, a violation of a department’s rules regarding uniforms.
Given that these changes are being incorporated into New York’s freedom of information statute, disclosure of police disciplinary records will be subject to that law’s framework. Under FOIL, it is up to the agency to make the initial decision on whether to release records in response to a request, such as a request for an officer’s disciplinary history. Agencies are generally required to either disclose the records or notify the requesting party of a reason for denying the request, usually within 5 to 20 days. From there, the person seeking the records can appeal the denial within the agency and ultimately ask a court for judicial review.
Agencies are only permitted to deny a FOIL records request under certain exceptions, several of which specifically relate to law enforcement. For example, agencies may withhold records to prevent interference with an investigation or judicial proceeding. As a result, in the event of a criminal investigation into police misconduct, law enforcement agencies may still seek to withhold relevant records until the investigation or criminal case is over.
Few laws still on the books have done more to hamper civil rights than the inaptly named Civil Rights Law 50-A. Even before the recent wave of protests, many in New York have advocated for its repeal. The New York State Committee on Open Government called for changes to the law in 2014, a demand that has also been made by defense attorneys, a former prosecutor responsible for police-involved death investigations, and even the former Albany police chief.
New York was long overdue to join the states that already have broader public disclosure laws that provide for increased law enforcement transparency and police accountability. Hopefully, more states will follow, and the nation will move another step toward changing the relationship between police and their communities.