A.            Civil Rights Law § 50–a Establishes a Legislative Exception to Public Access Under the New York State Freedom of Information Law

Under New York’s Freedom of Information Law (“FOIL”), government records are publicly accessible, unless exempt from disclosure by state or federal statute.[48] Police disciplinary files are subject to a specific exemption from disclosure under Civil Rights Law § 50–a. Enacted in 1976, § 50–a mandates that “[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.”[49]

Additional provisions of the law establish a process for obtaining such court orders in connection with litigation, including the requirement for in camera review of the documents at issue for relevance and materiality.[50] Another subsection permits village, city, and county attorneys, prosecutors, or “any agency of government” to obtain such records if required in connection with official duties.[51]

The historical impetus for § 50–a was narrow: it was designed to prevent defense attorneys in criminal cases from impeaching the testimony of officers, in particular by confronting them with unsubstantiated allegations.[52] Subsequent amendments and court decisions, however, set forth a broader purpose of protecting officers from harassment and reprisals more generally.[53] In one recent case, for example, the First Department denied an application to disclose an officer’s disciplinary history because of the risk of “hostility and threats” unrelated to the litigation in which disclosure was sought.[54] Critics argue that § 50–a keeps from the public critical information about the workings of the NYPD’s disciplinary system and that the lack of transparency breeds mistrust.

[48] Pub. Off. L. § 87(2)(a).

[49] Civ. Rights L. § 50–a(1).

[50] Civ. Rights L. § 50–a(2), (3).

[51] Civ. Rights L. § 50–a(4).

[52] Budget Report on Bill No. 7635, Bill Jacket 1973, ch. 413 ¶ 6 (“This bill would afford some protection to police officers who must testify in criminal proceedings.”); Letter from District Attorney Merola, Bill Jacket 1976, Ch. 413 at 20 (“It has been brought to my attention that, often simply as a harassment tactic, defense attorneys in criminal cases have been making an unrealistically high number of requests for personnel files of police officers.”).

[53] See Mem. of Senator Marino and Member of Assembly Arthur J. Kremer, Bill Jacket 1981, ch. 778 at 9; Budget Report on Bills No. 5402, Bill Jacket 1981, ch. 778 at 10.

[54] Luongo v. Record Access Officer, Civilian Complaint Review Bd., 50 A.D.3d 13, 26 (1st Dep’t 2017) (hereinafter “Luongo I”).