In February 2013, a top aide to Governor Andrew Cuomo went on an Albany radio show to explain the ouster of an engineer from the Department of Transportation whose forced retirement had led to criticism of the governor.
“His disciplinary action was for among the following: internet misuse, email misuse, department vehicle misuse, blackberry misuse, conflict of interest,” former aide Howard Glaser said, listing more infractions as he went on.
He was able to call out the worker because disciplinary records for most government employees are open to the public in New York. But if Glaser wanted to tell the public if an NYPD officer caught on tape choking a man to death had a history of excessive force complaints, he couldn’t do it.
Section 50-a of the state’s Civil Rights Law makes personnel records for law enforcement confidential. That includes internal affairs files, civilian complaints and disciplinary findings.
It’s one of the most restrictive policies in the country, with implications not just for the general public but also for criminal defendants who could use such records as evidence.
“Police officers are the public employees who have the most power and control over people’s lives,” said Robert Freeman, executive director of the state’s Committee on Open Government. “And the result of 50-a is that they are the least accountable. It should be the reverse.”
While extreme, New York is not alone in largely shielding such records from the public. WNYC reviewed public records laws and court cases and interviewed attorneys and legal experts in all 50 states.
We found 23 states plus the District of Columbia where police disciplinary records are pretty much always confidential. New York is one of three we found with a confidentiality provision only for law enforcement. New York is also one of the few states with no provision to balance the public interest against an officer’s right to privacy.
The state has also broadly interpreted the law to include virtually any record pertaining to an officer’s performance.
In contrast, 15 states allow some limited access and in 12 the records are completely open. Around the country, some in law enforcement say confidentiality is important for the safety of officers.
"It's intrusive to have unfettered access to these records. It allows people to go on witch hunts of police officers,” said Delroy Burton, chairman of the Washington, D.C., police union. “Even if someone saw that an officer was accused of misconduct and cleared of the allegations, that's the only thing they'd focus on. They would take that accusation and run with it. Not only could this ruin his career, it could put him or his family in danger.”
The New York state legislature created 50-a in 1976; the stated intent was to keep lawyers from combing through employment records to harass officers in court.
Michael Palladino, president of the Detective’s Endowment Association, the union representing NYPD detectives, said defense attorneys may take a minor situation and blow it out of proportion.
“That could possibly sway a jury to allow a criminal to be set free when they really shouldn’t be set free,” Palladino said.
More on this investigation: The Hard Truth About Cops Who Lie• When a Cop's Right to Privacy Undermines Our Right to a Fair Trial
But what’s harassment to an officer might be critical evidence to a defense attorney.
In states like New York that restrict access to disciplinary records, defense attorneys who want information on an officer testifying against their client must prove to a judge that there’s something in the officer’s confidential file that’s relevant to the case.
But attorneys say that’s hard to do if they’ve never actually seen the file.
Nancy Daniels doesn’t have that problem. She’s been the elected public defender in Tallahassee, FL., for the past 25 years. Florida has one of the most open public records laws in the country and her attorneys regularly request personnel information on officers.
“Often that is pivotal in how the case is resolved,” Daniels said.
She said her office just recently defended a client accused of assaulting a law enforcement officer where the records decided the case.
“This officer had an excessive use of force history, several complaints — in fact even had shot a person and been investigated for that — and we brought all that before the prosecutor and they actually dismissed the case,” Daniels said.
Technically, prosecutors are required to turn over such information to the defense. That’s because defendant’s have a constitutional right to information that could prove their innocence, including material impeaching the credibility of a prosecution witness. But prosecutors only have to turn it over if they know about it, and they’re not required to go out of their way to find it, said Bennett Gershman, a law professor at Pace University.
“The confidentiality of these records is something that could very well produce a miscarriage of justice. It probably has — often,” Gershman said. “That’s a matter for the legislature in its infinite wisdom to decide to change.”
In December, the Committee on Open Government recommended the repeal of 50-a, or at the very least, substantial changes. But Freeman, the executive director, said he hasn’t heard much from lawmakers regarding that proposal.
“It seems to be an issue that many are not willing to touch and my belief is, and maybe I shouldn’t say this but I will – I believe that the unions are exceedingly powerful and members of the legislature don’t really want to upset them,” Freeman said.
The Patrolmen’s Benevolent Association, the NYPD’s largest police union, wouldn’t comment. But Palladino, of the detectives’ union, said he’s happy the legislature is listening.
“The power of the police union is simply the power of the voices of the members that we represent and their families. So I’m glad to hear that even in this day and age where organized labor isn’t as strong…people still think police unions wield a lot of power,” Palladino said.
State Senator Kevin Parker, a Brooklyn Democrat, introduced a bill earlier this year that would allow disclosure of at least some performance records. He says the Black Lives Matter movement shows people want transparency.
“Even though it may not be popular in the legislature, I think eventually the legislature is going to catch up to the popular opinion,” Parker said.
So far, that bill has gone nowhere.
