Newspapers, open-government agency, fight law that shields police-misconduct records

New York’s finest New York Police Department recruits salute during graduation ceremonies in New York’s Madison Square Garden (AP Photo/Richard Drew)

As the national conversation about police-community relations intensified in recent months, open-government advocates in New York State escalated their fight against a statute that allows law-enforcement agencies to keep virtually all internal personnel records secret.

A report delivered to the governor and the state legislature last week urges repeal of a law authorizing police departments to keep “all personnel records used to evaluate performance toward continued employment or promotion” confidential. The statute, Civil Rights Law 50-a, was enacted in 1976 to protect officers who serve as witnesses for the prosecution during cross examination by criminal defense attorneys. Critics say that the law has been stretched over the years to cover not just simple performance reviews but investigations and reports pertaining to police misconduct. But the law’s defenders insist it is necessary to keep police safe. As James Miller, a spokesman for the New York State Correctional Officers and Police Benevolent Association, told the Albany Times-Union last week: “[M]aking detailed personal information available to convicted criminals will potentially put our officers and their families at risk.”

The records shielded by the law do, though, often include internal investigations of police wrongdoing. The Committee on Open Government, the public body in Albany that issued last week’s report, wrote in its recommendations that “such secrecy is unwarranted and defeats [Freedom of Information Laws’] goal of transparency and accountability.”

“My feeling is that it is among the worst statutes enacted in this state,” Robert Freeman, executive director of the committee, said in an interview. “The group of public employees who have the most power over people’s lives are the least accountable…The scope of 50-a seems to be expanding all the time. Where does it end?”

Obtaining police records is already notoriously difficult. A 2013 report by Bill de Blasio, who was then the New York City public advocate, found that the city police department, the nation’s largest, failed to even respond to more than 30 percent of freedom-of-information requests in the three-month period studied.

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A Newsday investigation of police wrongdoing in December 2013 revealed a lack of oversight throughout Long Island, much of it stemming from the 50-a law. “Officers have shot innocent people, falsified official reports, manipulated DWI arrests to increase overtime pay and lied to district attorneys and investigators,” Sandra Peddie and Adam Playford wrote. “Occasionally an officer’s poor behavior bursts into public view, embarrassing the majority of officers who spend their careers serving honorably. But far more often, serious misconduct stays hidden behind state Civil Rights Law 50-a, which makes any record used to judge an officer’s performance confidential.”

Local police union chief James Carver panned the exposé the following day, according to Newsday, saying that 50-a “stops the nonsense” if a lawyer attempts to “discredit a police officer.” Opponents claim the potential for such character assassination is overstated.

Backed by union political clout, the law has become an effective roadblock to news organizations seeking data on police misconduct and discipline. The Times-Union, for example, has fought two legal battles over personnel records arguably protected by the law in the past four years.

Newsday similarly sued the Nassau County Police Department for the release of an internal investigation, among other records, of a bungled murder case from 2009. Though a New York State Supreme Court judge in March ruled in the police department’s favor, court documents show, the newspaper is appealing the decision.

“On behalf of our readers, we are committed to gaining access to critical information that the public has a right to know,” Newsday Editorial Director Debby Krenek said in a statement.

Long Island resident Jo’Anna Bird was tortured and killed in 2009 by ex-boyfriend Leonardo Valdez-Cruz, who at the time was reportedly working as a police informant. Law enforcement officials later said an internal affairs report found that at least seven Nassau police officers had failed to investigate domestic violence complaints before Bird’s murder. After her family sued for damages, Nassau County approved a $7.7 million settlement in January 2012.

But the report that explains why such a large sum was warranted remains unavailable to the public. What’s more, county lawmaker Peter Schmitt alluded to even more misconduct than publicly acknowledged, saying after the settlement, “There are 22 police officers in this county who were mentioned in that confidential internal affairs report who ought to be ashamed to look at themselves in the mirror.” Newsday readers — Nassau County taxpayers — have no idea who those officers are or what they did.

Newsday asked for the internal affairs report, along with files on Bird and Valdez-Cruz, in an April 2012 request under the state’s freedom-of-information law. The police department cited law 50-a in its denial of the query, adding that the newspaper failed to receive authorization from officers mentioned in the report — which is sealed — for its release. The newspaper’s three subsequent administrative appeals were also nixed on similar grounds. Deputy County Attorney Brian Libert argued in denying Newsday’’s final appeal that the records pertaining to Bird and Valdez-Cruz were also part of the internal affairs report, and that “these records can be and are used to evaluate performance toward continued employment or promotion of officers.”

The newspaper sued for the information in July 2013. “NCPD simply cannot use Section 50-a as a catchall exemption…on the ground that those documents could potentially be relevant one day to a personnel decision,” its lawyers wrote. But a state Supreme Court judge disagreed, ruling both that the internal affairs report is covered under the law and that police records of Bird and Valdez-Cruz are part of the report. Newsday has since appealed the decision, though oral arguments for it have yet to be scheduled.

The Nassau Police Benevolent Association did not respond to a request for comment. Neither did Newsday’s lawyers. The Nassau County Police Department declined to comment.

Though there’s little political momentum at the moment to tweak or repeal 50-a, public pressure to improve oversight of law-enforcement agencies is growing. The recent police killings of Michael Brown in Ferguson, MO, Eric Garner in New York City, and others around the country have ignited a national debate over misconduct and accountability.

In the meantime, the Legal Aid Society, a nonprofit that provides pro bono representation for low-income New Yorkers, has launched the Cop Accountability Project, a database that tracks bad police behavior that is often masked by 50-a and related statutes. Culling information from lawsuits, civilian complaints, media reports, and other sources, the initiative aims to notify lawyers when a police officer working their case has a history of misconduct, said Justine Luongo, head of the Legal Aid Society’s criminal practice.

“As a litigator, I regularly did research on the police officers who are on my case,” she said. “What’s new is working toward the bigger picture beyond that one case — connecting the dots from case to case.”

The Legal Aid Society will use information from the database to further its media advocacy and policy reform efforts, though that data will not be open to the public. So New York media outlets will continue to be rebuffed, or ignored, when they request many internal police documents. The Committee on Open Government recommended that the answer for increased transparency could be as simple as tweaking the law to protect personnel records used “solely” to evaluate performance. One word can make all the difference in a questionably applied law — especially one that, as Freeman described it, is essentially “a blank check.”

This article has been updated with a statement from Newsday Editorial Director Debby Krenek.

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David Uberti is a writer in New York. He was previously a media reporter for Gizmodo Media Group and a staff writer for CJR. Follow him on Twitter @DavidUberti.