Newsday records request prompts Nassau police inquiry -- and records denial

The Nassau County Police Department planned to investigate one of its officers because Newsday requested public records concerning the officer, a police spokesman said.

The spokesman said the department would be allowed to deny portions of the paper's request under a state law applying to records that would interfere with an investigation if released. However, the head of the state's government transparency committee says no state law exempts the records, even if the department investigated the officer.

Nassau police spokesman Det. Lt. Richard LeBrun later said the "investigation" into the officer should be characterized as an "inquiry." After a reporter informed LeBrun the newspaper was writing a story about the inquiry, Tatum Fox, legal counsel to acting Police Commissioner Thomas Krumpter, said there would be no inquiry without a specific allegation against the officer.

Fox said the department would still not provide Newsday with all the requested public records because of New York Civil Rights Law 50-a, which makes confidential any records used to judge an officer's performance.

Newsday recently filed a request under the state's Freedom of Information Law for the officer's employment application, his union contract and one year of time card and leave documents. The newspaper has obtained the same public records from numerous agencies in the past, including law enforcement.

Newsday is not naming the officer because it has no findings of wrongdoing.

LeBrun said there is no department policy that calls for investigating officers based on public records requests. Newsday's request prompted a meeting of several department officials, LeBrun said, and they decided to be proactive in determining why the officer was the target of a public records request. LeBrun declined to name the department officials involved in that meeting.

LeBrun said the department did not decide to launch an investigation only so that it had a reason to deny the records request. "That's not what we're doing," he said.

Even if the department did decide to investigate the officer, it would have no legal basis for withholding any of the records in their entirety, according to Robert Freeman, executive director of the New York Committee on Open Government. Freeman said he has never even heard of an agency starting an investigation based on a records request and then using it to deny access to the records. "I've been doing this for 41 years, and one of the things that keeps me going is that I hear something new every day," Freeman said. "This is indeed a new one."

Freeman said the state law exempting records that would interfere with an investigation if released does not apply to job applications, time cards, contracts or other records generated in the normal course of government business. He also said a 1986 New York Court of Appeals case specifically ruled that leave and time card records are not exempt under 50-a.

Newsday intends to file an appeal if the department denies the records request.

Last year, state Supreme Court Justice Daniel Palmieri ordered the Nassau police department to produce public records Newsday had been denied in five different requests filed between August 2012 and February 2013. Palmieri ordered the county to pay $32,000 in attorney's fees and costs to Newsday because the department had no reasonable basis for denying the requests.

By Matt Clark

Matt.Clark@newsday.comMattTheJourno

Matt Clark is an investigative reporter, data analyst and computer programmer who has been a member of Newsday's investigative team since 2013. He worked on the 2013 police misconduct series that was a Pulitzer Prize finalist for Public Service.