The Nassau and Suffolk police departments must release officer misconduct records they’ve withheld for more than three years after the repeal of a state secrecy law, two courts ruled last week.
Both decisions — from the state Appellate Division in Brooklyn and a state Supreme Court judge in Riverhead — centered on a finding that the departments improperly claimed a blanket privacy exemption in any case where an internal investigation did not substantiate wrongdoing or impose discipline, which are the vast majority.
As a result, Newsday has received relatively little information from wide-ranging public records requests it made to each department after the State Legislature’s June 2020 repeal of the “50-a” law that for decades shrouded the internal affairs process.
The rulings came in separate 2021 lawsuits Newsday filed in state Supreme Court against Nassau and Suffolk police, after the newspaper was refused most disciplinary records or received documents that were redacted to the point of being indecipherable. Newsday also requested detailed electronic databases of officer misconduct complaints and findings, which it has yet to receive.
WHAT TO KNOW
- Nassau and Suffolk police must release officer misconduct records they've withheld since 2020, two courts recently ruled.
- The departments had argued records of unsubstantiated allegations could be exempted as an invasion of personal privacy.
- But the court decisions found there is no blanket exemption for such cases under state Freedom of Information Law.
“We are relieved that, finally, more than three years after the legislature made abundantly clear that police disciplinary records should be exposed to sunlight, the courts in New York — in Newsday’s cases and in others — are starting to make transparency actually happen,” Alia L. Smith, a Manhattan-based attorney who represented Newsday in the lawsuits, said in a statement.
The counties did not immediately signal if they would seek appeals.
Christopher Boyle, a spokesman for Nassau County Executive Bruce Blakeman, said the county attorney will review the Appellate Division decision and "advise the County Executive accordingly.”
Marykate Guilfoyle, a spokeswoman for Suffolk County Executive Steve Bellone, said the decision issued in state Supreme Court was being reviewed.
The NYPD already has released much of the details that the other departments have withheld, with several news organizations and civil rights groups publishing online databases as a result. The records are also available on a city website.
Following the May 2020 killing of George Floyd in Minneapolis and nationwide calls for police reform, New York lawmakers said they envisioned the repeal shining a light on a historically clandestine system. The repeal passed overwhelmingly in both the state Senate and Assembly and was championed by then-Gov. Andrew M. Cuomo. It placed police disciplinary files under the rules of the state Freedom of Information Law, where other public employee records long could be requested, subject to exemptions for personal privacy.
But Long Island’s largest police forces and many across the state found ways to continue shielding from the public most records revealing how they investigate misconduct complaints.
Stymied by Nassau and Suffolk, Newsday obtained internal affairs reports and other critical documents from sources and federal lawsuits to piece together its 2022 “Inside Internal Affairs” series, which revealed that the departments often imposed little or no penalties in cases involving serious injuries or deaths.
The departments argued that releasing any records of unsubstantiated complaints — not only where an officer was exonerated but also where charges couldn’t be proved — was an unwarranted invasion of privacy and could properly be exempted from FOIL requests.
Had the Legislature intended to exempt unsubstantiated complaints, it would have stated as much in the repeal legislation, the Appellate Division's Second Department said in its Nov. 22 ruling.
“It did not, and instead included ‘complaints, allegations, and charges’ in its definition of disciplinary records, along with the ‘disposition of any disciplinary proceeding,' ” the ruling states.
The panel, in overturning a 2021 lower court ruling, said Nassau police must release the records Newsday requested, redacting only specific information that meets a narrower definition of a privacy invasion.
Roy Gutterman, who directs the Syracuse University Newhouse School's Tully Center for Free Speech, said it is appropriate for agencies to redact personal, financial and medical details, but "there is a vast disparity between an unsubstantiated report of police misconduct and legitimately private information."
The appellate court decision also said Nassau wrongly withheld information on the argument that the 50-a repeal could not be applied retroactively.
“It has offered no support for this proposition,” the appellate decision stated. “By their nature, FOIL requests seek records that were generated before the request date.”
In the Suffolk lawsuit, Justice Maureen T. Liccione ruled on Nov. 21 that the department within 30 days must begin providing records on a rolling basis, including a detailed justification for any redactions.
“There is no blanket exemption for unsubstantiated allegations,” she wrote.
The Newsday decisions mirror several others previously issued by the Appellate Division around the state.
The issue, however, is not settled. Rochester police received approval to appeal the appellate decision against it to the Court of Appeals, the state’s highest court.
And Long Island’s police unions remain opposed to releasing large swaths of officer disciplinary records in cases where misconduct wasn’t confirmed.
Suffolk Police Benevolent Association president Lou Civello said in a statement to Newsday that releasing unsubstantiated, or "debunked," allegations against police officers "will only be used by criminals to undermine legitimate police work and further erode public safety in our communities.
"We are disappointed by this decision and believe it shows that [the] law is fundamentally flawed prioritizing criminals over law abiding citizens," Civello said.
State Sen. Jamaal Bailey (D-Bronx), who co-sponsored the 2020 repeal, said in an interview Friday: "This is not anti-police or anti-public safety. This is a transparency bill."
He said that lawmakers specifically carved out the personal privacy exemption because of officers' concerns that details of their home lives would be exposed in release of disciplinary files.
"But as far as the personnel records, it's something that I firmly believe should be available," Bailey said.
Bobby Hodgson, a supervising attorney with the New York Civil Liberties Union, which has also sued numerous police departments, said, "that so many records are still fully secret has been a surprise and a real disappointment."
“It’s been a real, real uphill slog getting communities policed by these agencies access to these records the state said they should have access to in 2020,” Hodgson said.