New York 50-a repeal: Six months later, police find ways to shield disciplinary records
In the Syracuse suburb of Manlius, police transparency carries a hefty price tag.
In June, the Manlius Police Department received an open-records request from MuckRock, a nonprofit news site. The request sought documents detailing any allegations of misconduct against current or former officers and any discipline the department imposed.
The department replied with a bill. For $47,504.
Six months ago, New York lawmakers and Gov. Andrew Cuomo repealed Section 50-a of the state Civil Rights Law, a once-obscure provision that had been used to shield police disciplinary records from public view for decades.
The repeal came amid national and statewide protests following the May 25 death of George Floyd, a 46-year-old Black man who died in police custody after an officer pressed a knee into his neck for nearly nine minutes.
Since then, the USA TODAY Network New York has partnered with MuckRock, the Brechner Center for Freedom of Information and Syracuse University journalism students to file more than 600 records requests with more than 400 police agencies in hopes of creating a searchable, first-of-its-kind database with disciplinary records from across the state.
But in much of the state, police agencies have declined to provide the documents without a fight.
The state’s Freedom of Information Law (FOIL) applies equally to all New York police departments, but only about 40 have actually provided records in response requests for existing disciplinary records, roughly one-tenth of local law enforcement agencies.
Some departments, such as those in Manlius, Yonkers and Oneida County, have requested thousands of dollars to sort through and redact the records, seeking labor costs by pointing to a provision in state law allowing them to charge the “actual cost” of reproducing records.
Others have pointed to ongoing lawsuits filed by police unions in New York City, Buffalo, Schenectady and other locations, challenging whether departments can legally release unsubstantiated or pending complaints.
At least 75 departments have claimed to have no disciplinary records at all, with some saying no complaints have been filed and others — including the town of Ogden near Rochester — suggesting they only keep the records for three years before destroying them.
Many departments, like the City of Poughkeepsie, have repeatedly pushed back the date by which they have pledged to provide documents, sometimes for months at a time.
Others say requests for all disciplinary records are too broad and can be denied. And about 80 departments haven’t responded at all, despite numerous inquiries by MuckRock and others.
The various tactics and strategies deployed by police departments make clear: Even though Section 50-a has been repealed, the battle for disciplinary records wages on.
“I am absolutely floored by how inaccessible this is to an ordinary person,” said Tina Chronopoulos, a Binghamton University associate professor and member of grassroots group Citizen Action, who filed at least 20 requests for disciplinary records on her own.
“The learning curve has been really, really steep.”
Disciplinary requests met with delays, denials
Under FOIL, state and local agencies have five business days to acknowledge requests for documents. For many requests in the database project, the five-day window came and went without an acknowledgement.
Some departments simply claimed the requests were too broad or burdensome, despite a provision in the FOIL that requires offices to provide direction to requesters on how to improve their requests. Others, when called, claim that they’ve received the requests but that they’d been handed off to city attorneys for response.
A few cities and towns, including Middletown, have claimed that the law doesn’t apply to existing records, only those created after the 50-a repeal.
The state’s Committee on Open Government disagrees.
Just three weeks after the repeal, the committee — a state entity that opines on open-government laws — suggested the new provisions of law would apply to "all law enforcement disciplinary records maintained by a law enforcement agency ... regardless of the current employment status of the subject individual."
It hasn’t prevented cities, towns and villages from trying to use the excuse, like Jamestown, which argued disclosure was not “retroactive.” After that FOIL rejection was appealed and overturned by the mayor, the city claimed fulfilling the request would require more than $20,000 in fees.
In some cases, resistance to responding to requests has been a team effort. Towns, like Maybrook, Deerpark and Goshen in Orange County, have allied in their responses, sending nearly identical rejections to requests from different reporters.
Maybrook and Goshen share a municipal attorney, Rich Golden, who was Orange County attorney from 1994 through 2001 under a previous county executive.
And Southold, a town on the eastern end of Long Island, cited a host of reasons for not releasing police disciplinary records. In its denial letter, it cited litigation, the volume of records involved, an "unwarranted invasion of personal privacy" and a claim that releasing the documents could put people in danger.
Resistance to the requests is not just limited to local police departments, either.
Both the New York State Police and Department of Corrections and Community Supervision, which oversees the state prison system, rejected requests and appeals for the last 10 years of disciplinary records, arguing they were too broad.
The two state agencies, as well as several other local departments across the state, suggested their filing systems didn’t allow them to separate out disciplinary records easily from personnel files.
“A reasonably described request for records should include specific parameters, such as the names of employees to be searched for,” Lt. Col. Scott Wilcox, state police assistant deputy superintendent, wrote in denying a USA TODAY Network appeal. “Whether a request is reasonably described may be dependent upon the nature of an agency’s filing or record keeping system.”
Legal cases remain on appeal
In several instances, police agencies have pointed to ongoing court cases as reason for delay.
In New York City, Buffalo, Schenectady and Tonawanda, police and fire unions or officers have filed lawsuits that attempt to block or delay disclosure of records in cases that remain pending or were based on complaints determined to be unfounded.
The lawsuits claim the releasing unfounded complaints would be an unwarranted invasion of privacy and should be kept from the public eye.
“These Unsubstantiated and Non-Final Allegations — unproven allegations at best and false allegations at worst — will be ‘data dumped’ on the internet, resulting in the publication and promotion of information that will absolutely destroy the reputation and privacy — and imperil the safety — of many of those firefighters and officers,” according to a federal lawsuit filed by New York City police and fire unions.
So far, state and federal courts have ruled on the side of transparency, ruling against unions in Buffalo and New York City. Several lawsuits, however, remain pending in trial court or on appeal, giving some police departments cover to claim they can’t release the documents while the legal process is ongoing.
In July and August, ProPublica and the New York Civil Liberties Union released New York Police Department misconduct information they had received following a FOIL request to the New York City Civilian Complaint Review Board, an independent agency tasked with investigating reports of civilian abuse by police.
The unions had tried to block the public release of the more-than-300,000 documents, but a federal district judge allowed them to be posted.
More recently, two lawsuits have been filed in the city of Rochester.
The NYCLU filed its own suit this month against the Rochester Police Department, which had not responded to its September request for disciplinary records.
“Police transparency is now codified into law, and police departments can no longer respond to an investigation into pervasive patterns of discrimination by shielding these records with foot-dragging delays or by arguing that the police must be trusted to police themselves, immune from public scrutiny,” said Bobby Hodgson, NYCLU senior staff attorney.
Previously, Rochester city leaders had pledged to publish a public database of its police disciplinary records by January.
As of last week, that database appeared to remain on track. But the Rochester Police Locust Club — the local police union — sued the city in state Supreme Court on Monday, seeking to delay it by claiming the city hadn't adequately redacted the disciplinary records for private or personal information.
Though they’re in the minority, some departments have been forthcoming with their full records:
- The village of Allegany in Cattaraugus County provided a response within days of receiving a request.
- In the Genesee County village of LeRoy, the records clerk was able to provide MuckRock with complaints back to the 1970s without issue.
- Other departments have provided documentation detailing officers stealing, recklessly speeding, abusing their power and refusing to respond to calls.
COVID-19 slows down compliance, too
Transparency has long been a backburner priority for law enforcement agencies. Compelling compliance with FOIL has been particularly difficult during the pandemic.
The shutdowns related to COVID-19 have also been widely cited as a reason that requests will need months to be processed. When 50-a was repealed in June, throughout New York government offices were still working with limited staff in response to the pandemic, affecting all operations, including FOIL processing.
But while some states formally pushed back their Freedom of Information Law deadlines as part of COVID-19 emergency declarations, New York was not one of them.
Six months later, though, the resistance to timely transparency seems at odds with the spirit of reform that followed George Floyd's death and the resultant protests.
Government- and police-reform groups are hoping police transparency could soon get a renewed look in Albany.
In a letter to the Committee on Open Government last month, nine government watchdog organizations called on the committee to highlight how easily FOIL can be subverted to allow for massive delays in providing documents to the public.
Among the groups to sign on to the letter were Reinvent Albany, the League of Women Voters, and the New York News Publishers Association, of which the USA TODAY Network’s New York newspapers are members.
“The ugly reality is that information requested via FOIL frequently takes six months to a year to be provided, and delays of 18 months to two years are common,” the letter reads. “Worse, the information that is provided is often incomplete and not what was requested.”
In an executive order issued the same day he signed the Section 50-A repeal, Cuomo had required local governments to submit plans for reform in their police departments in order to qualify for state aid.
The plans need to be created with community input and be completed by April 1, 2021. They are required to include a “comprehensive review of current police force deployments, strategies, policies, procedures and practices,” according to Cuomo’s order.
The state Legislature, which approved the repeal in June, is next scheduled to convene in January, though a special session to tackle the state’s growing budget deficit is possible before then. Democrats will have a two-thirds majority in both the Senate and Assembly beginning in 2021.
Sen. Jamaal Bailey, D-Bronx, who sponsored the bill approved in June, said he wants to ensure the “spirit of the law is followed by everybody.”
“The spirit and intent of the law is transparency,” he said. “It is not to deride police, it is not to annoy police. It’s so people can know who is policing them.”
Includes reporting by Saba Ali of the Poughkeepsie Journal, Jonathan Bandler of The Journal News, Anthony Borrelli of the (Binghamton) Press & Sun-Bulletin, Will Cleveland of the Rochester Democrat and Chronicle, H. Rose Schneider of the (Utica) Observer-Dispatch and Heather Yakin of the (Middletown) Times Herald-Record.
Beryl Lipton is projects editor and senior reporter for MuckRock, a nonprofit collaborative news site focused on freedom of information and tools to keep our government transparent.
Jon Campbell is a New York state government reporter for the USA TODAY Network. He can be reached at JCAMPBELL1@Gannett.com or on Twitter at @JonCampbellGAN.
Status of police disciplinary requests in Dutchess
Of the eight police departments in Dutchess County, only the Town of East Fishkill denied the request for disciplinary documents stating that no officers had been disciplined in the past decade.
Four Dutchess County municipalities partially granted the request by providing records such as settlements, a list of employees or letters of resignation that were non-disciplinary. Three police departments including City of Poughkeepsie continue to ask for extensions and have not provided any documents, or even reasons for the delay.
The Dutchess County Sheriff’s Office granted all items requested, except for the names of officers who are facing complaints and disciplinary charges because they “have not yet resulted in a final determination.”
However, Tracy Lindauer, who is the county’s acting FOIL records access appeals officer, determined that the 50-a repeal was not retroactive and that disciplinary documents can only be retained for three years. The Journal was sent a list of officers who resigned or were terminated since 2017 and letters of resignation. Reasons for two terminations were not provided.
The only department to provide documents detailing disciplinary action was the Village of Wappingers. So far, the village has sent the Journal four “stipulation of settlement” documents providing information about situations where an officer was charged and disciplined. Charges included not attending required training to failing to investigate and file complaints or reports. The maximum disciplinary action was five days suspension without pay.
The Town of East Fishkill denied two Freedom of Information requests. The first was denied because it was too broad having asked for disciplinary records for the whole department. After the Journal sent a second request, this time providing a list of officers, the town denied it on the bases that no records were found that were “responsive to your request.”
— Saba Ali
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