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Understanding 50-a: The law that shields police disciplinary records

THE LAW

N.Y. CVR. LAW § 50-a : NY Code - Section 50-A: Personnel records of police officers, firefighters and correction officers

1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a
sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the division of parole for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the division of parole except as may be mandated by lawful court order.

2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.

3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.

4. The provisions of this section shall not apply to any district attorney or his assistants, the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions.


A STATE AGENCY PUSHES FOR REPEAL

The Committee on Open Government argued in a 2010 annual report that the state's confidentiality law protecting police personnel files should be repealed. The excerpt from the report is below:

A statute enacted more than 30 years ago, §50-a of the Civil Rights Law prohibits the disclosure of “personnel records” concerning police officers that “are used to evaluate performance toward continued employment or promotion.” In our view, that law should never have been enacted, and it should be repealed.

FOIL states that a government agency may withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” Although that standard is subject to a variety of interpretations, and society’s beliefs about privacy are constantly changing, the courts have determined time and again that public officers and employees enjoy less privacy than others, for those persons are required to be more accountable than others. Further, in a variety of circumstances, the courts have determined that disclosure of those items that are relevant to the performance of a public employee’s duties are generally accessible, for disclosure in those instances would result in a permissible, not an unwarranted, invasion of personal privacy.

When a public employee is found to have engaged in or admitted to having engaged in misconduct, it has been held on numerous occasions that records reflective of those outcomes are accessible. That is so with respect to the great majority of public employees - - teachers, clerks, sanitation workers, secretaries, even judges. But those same records as they relate to police officers are confidential; they cannot be disclosed unless a police officer consents or a court orders disclosure.

The Court of Appeals in construing § 50-a found that it “was designed to limit access to said personnel records by criminal defense counsel who used the contents of the records, including unsubstantiated and irrelevant complaints against officers to embarrass officers during cross-examination” (Capital Newspapers v. Burns, supra, 568). While the intent of the statute may have merit, it overlooks a critical reality: the judge has control over the courtroom, and lawyers and judges ensure that a jury and the public do not learn about the kind of material that is shielded by § 50-a.

Equally unfortunate are the amendments to that statute. Other employee groups have contended that if police officers enjoy confidentiality protection, they should as well, even though their work would rarely involve being placed on the stand in a litigation context, and they would rarely, if ever, be placed in a situation in which they would be victims of the embarrassment sought to be avoided. Those amendments now extend § 50-a to correction officers, professional firefighters, firefighter/paramedics and peace officers within the Division of Parole.

We point out that if a complaint, an allegation or a charge is made against a public employee, it has been held that those records, as well as opinions concerning performance, can be withheld. Those are the kinds of records that the Legislature sought to protect by enacting § 50-a, and they would remain beyond the scope of rights of access conferred by the FOIL if § 50-a is repealed.

Most importantly, because of § 50-a, those public employees who have the most power over our lives are the least accountable. If a police officer, a correction officer or a professional firefighter has broken the rules, the public should have the right to know.

In short, we call on the Legislature to repeal § 50-a of the Civil Rights Law.


LEGISLATING CONFIDENTIALITY

From the state archives, these documents offer a legislative history of Albany's 1976 debate over whether to pass a statewide law making cops' personnel records confidential.

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