As interpreted by the Court of Appeals in the NYCLU litigation, Civil Rights Law § 50–a protects police “personnel records used to evaluate performance toward continued employment or promotion” from disclosure, including in response to a FOIL. If a record falls within § 50–a’s scope, the protection is absolute. The Department cannot produce the record in response to a FOIL request, or on its own initiative, even if it is redacted to protect an officer’s privacy. Even the Department itself believes that § 50–a sweeps too broadly, and the Panel, along with many other constituents, agree fully with that assessment. Officer privacy is a legitimate concern, but some meaningful disclosure is necessary if the public is to have confidence that the Department’s disciplinary process works.
It is now up to the Legislature to amend § 50–a and restrike the appropriate balance between privacy and transparency. Drafting reform legislation is beyond the Panel’s mandate, but there are several possible “fixes” that the Panel would favor. One proposal that warrants consideration, as discussed further below, would be to amend § 50–a so that it applies only to the subpoenaing of disciplinary records in court cases, and not to FOIL requests. Such a reform would limit § 50–a’s application to its original purpose—protecting police disciplinary records from discovery in ongoing litigation—and would not leave officers unprotected outside of the court context.
As noted, New York is nearly alone in maintaining a statute specifically blocking police disciplinary records from disclosure under freedom of information laws. Amending the law to permit FOIL disclosure would bring New York’s statutory scheme more in line with those states that open police records to public scrutiny, thereby empowering citizens and enhancing public oversight of the disciplinary process. Amending the law to eliminate special protections for personnel records of police officers would also put an end to the difficult questions of statutory
It is noteworthy that the New York City Bar Association and the New York City
Law Department have both called for legislative reform. See New York
City Bar, City Bar Urges Repeal of Civil Rights Law 50–a to Allow Public
Disclosure of Police Records Relating to Police Misconduct—Thirty Two Other
Organizations Also Support (Apr. 30, 2018),
(last visited Jan. 9, 2019). The New York City Law Department has stated, “If
greater transparency is to be achieved, section 50–a of the state’s civil
rights law must be amended.” Dan M. Clark, NYPD Can Withhold Disciplinary
Records From Public, NY Court of Appeals Holds, New York Law Journal (Dec.
11, 2018), https://www.law.com/newyorklawjournal/2018/12/11/
nypd-can-withhold-disciplinary-records-from-public-ny-court-of-appeals-holds/. The New York City Corporation Counsel, Zachary Carter, has similarly opined that “[t]o the extent that current law does not permit transparency into the disciplinary process, it should be changed.” Office of the Mayor, Mayor de Blasio Outlines Core Principles of Legislation to Make the Disciplinary Records of Law Enforcement and Other Uniformed Personnel Subject to Disclosure (Oct. 14, 2016), https://www1.nyc.gov/office-of-the-mayor/news/820-16/mayor-de-blasio-outlines-core-principles-legislation-make-disciplinary-records-law (last visited Jan. 9, 2019).