When NYCLU reached the Court of Appeals late last year, the court issued a sweeping interpretation of the reach of § 50–a, holding that even the release of redacted records is prohibited.[65] NYCLU, like each of the recent cases above, addressed the scope of § 50–a in the context of a FOIL request, not the Department’s authority to release records on its own initiative or in response to a court order. But the NYCLU decision also included language suggesting that, regardless of whether a FOIL request has been made, the NYPD has no latitude to voluntarily release information that it cannot be compelled to release under § 50–a.[66] In the Panel’s view, this language likely effectively overrules an older line of lower court cases holding that police departments could voluntarily disclose disciplinary outcomes pursuant to the “governmental function” exception in § 50–a(4).[67] In light of NYCLU, legislative action will be required to eliminate or lower § 50–a’s barrier to transparency and accountability for NYPD disciplinary matters.

D.            Lack of Disclosure and Limited Visibility Into the Disciplinary Process are Detrimental to Public Confidence and Oversight

Many people told the Panel that confidentiality of disciplinary records is especially hurtful to those injured or killed in police-related incidents and to their loved ones. Constance Malcolm, whose 18-year-old son Ramarley was shot to death by police officers in 2012, explained to the Panel that she had to fight “tooth and nail” for six years to obtain any information regarding the dispositions of disciplinary cases against three officers involved in her son’s death. Retired professional tennis player James Blake, who was mistakenly tackled to the ground by an officer in a well-publicized 2015 incident, learned of the disposition of the officer’s case months after the Commissioner’s decision. Mr. Blake told the press, “I would expect the common courtesy of a notification from a city that claims to be improving the transparency of how its police department operates.”[68] Jimmy Alvarado, a Brooklyn teen who was paralyzed when a pursuing officer fell on him, was not informed that the disciplinary case against the officer was closed when he chose to resign. Denying those directly affected by police misconduct access to information on police discipline serves no one’s interest. More broadly, lack of transparency impedes the Department’s efforts to show the public that it holds officers accountable for their conduct.

[65] NYCLU, 2018 WL 6492733 at *1-2, 6.

[66] Id. at *5 (“[T]hese distinct and mandatory New York provisions expressly operate to guarantee confidentiality notwithstanding FOIL’s permissive disclosure regime.”).

[67] See Reale v. Kiepper, 204 A.D.2d 72, 73 (1st Dep’t 1994) (release of summary of transcript officers’ disciplinary decisions was “in a nonlitigation context and in furtherance of an official function.”); Poughkeepsie Police Benevolent Assn. v. City of Poughkeepsie, 184 A.D.2d 501, 501 (2d Dep’t 1992) (release of summary of internal investigations of police misconduct by police department was “in furtherance of its official functions, unrelated to the purpose of Civil Rights Law § 50–a.”). This is also the position the NYPD took regarding disclosure of anonymized summaries of personnel records in Patrolmen’s Benevolent Ass’n v. de Blasio, No. 153231/2018 (N.Y. Sup. Ct.), which is currently pending before the Supreme Court in New York County. Resp’ts Mem. of Law in Supp. of Their Cross-Mot. to Dismiss, NYSCEF No. 15, at 7 (citing Reale, 204 A.D.2d at 73).

[68] Ben Feuerherd and Joe Tacopino, Tennis Star James Blake Slams de Blasio, NYPD Over False Arrest, N.Y. Post (Aug. 1, 2018), https://nypost.com/2018/08/01/tennis-star-james-blake-slams-de-blasio-nypd-over-false-arrest/.