C.             The NYPD Interprets § 50–a Aggressively and the Courts Have Upheld This Approach

Since the 1970s—and until 2016—the NYPD periodically posted officers’ “Personnel Orders” for inspection by members of the media assigned to Police Headquarters. Those orders recount the basic facts of substantiated disciplinary charges, including a description of the offense, the penalty imposed, and the offending officer’s name. In 2016, however, the NYPD decided that continued posting of the Personnel Orders was inconsistent with § 50–a and discontinued the practice. The Commissioner and other NYPD officials told the Panel that the change was not the result of a changed legal analysis. Rather, the NYPD said its Legal Bureau became aware of the practice for the first time in 2016 when it was called upon to litigate a FOIL request for the Personnel Orders made by the Legal Aid Society. Upon learning of the practice, the Legal Bureau determined that it was inconsistent with § 50–a and advised that it stop. The NYPD’s decision to stop publicly posting Personal Orders was met with sharp criticism. The public, the media, and advocacy groups rightly argued that the decision blocked one of the few avenues for the public to gain insight into the NYPD’s internal disciplinary practices.[60]

The Legal Aid Society challenged the NYPD’s reversal of its practices in court in In the Matter of Justine Luongo v. Records Access Appeals Officer, NYPD, 160232/2016 (N.Y. Sup. Ct. 2017) (“Luongo II”), arguing that § 50–a does not prohibit the disclosure of the Personnel Orders. The New York Supreme Court, however, found in the Department’s favor, reasoning that: because the Department used the Personnel Orders to evaluate performance, they were within scope for § 50–a; there was a demonstrable potential for harassment if the records were to be disclosed; and the NYPD’s previous practice of disclosing the Personnel Orders did not prevent the Department from changing its practice.[61] In its decision, the court relied, in large part, on two recent First Department decisions in cases brought prior to the 2016 change of practice. In Luongo v. CCRB Records Officers and Daniel Pantaleo (“Luongo I”), the court declined to order the release of a summary of the disciplinary history of the officer implicated in the 2014 death of Eric Garner.[62] In Matter of New York Civil Liberties Union v. New York City Police Department (“NYCLU”), the court held that disciplinary decisions relating to cases brought by CCRB were also protected by § 50–a.[63] Last week, on January 17, 2019, the Appellate Division, First Department, summarily affirmed the Supreme Court in Luongo II, relying on the Court of Appeals’ recent decision in NYCLU, discussed below.[64]

[60] See, e.g., Change State Law to Let Taxpayers Know About Police Discipline, Editorial, Newsday (Sept. 7, 2016), https://www.newsday.com/opinion/editorial/change-50–a-law-to-let-taxpayers-know-about-police-discipline-1.12281518; NYPD Needs to Let The Public Know More About Police Discipline, Editorial, N.Y. Post (Mar. 3, 2018), https://nypost.com/2018/03/03/nypd-needs-to-let-the-public-know-more-about-police-discipline/; see also End Secrecy About Police, Editorial, The Times-Union (Albany, N.Y.) (Dec. 18, 2016), https://www.timesunion.com/tuplus-opinion/article/Editorial-End-secrecy-about-police-10805058.php.

[61] In the Matter of Justine Luongo v. Records Access Appeals Officer, NYPD, 160232/2016 (N.Y. Sup. Ct. June 1, 2017).

[62] Luongo I, 150 A.D.3d 13, 26 (1st Dep’t 2017). Luongo I is pending in the Court of Appeals.

[63] 148 A.D.3d 642 (N.Y. App. Div. 2017). NYCLU was later affirmed by the Court of Appeals. Matter of N.Y. Civil Liberties Union v. N.Y. City Police Dep’t, No. 133, 2018 WL 6492733 (N.Y. Dec. 11, 2018).

[64] See Luongo II, No. 160232/2016, slip op. at 2 (N.Y. App. Div. Jan. 17, 2019).