In 2011, Rikers Island guard Aubrey Victor was videotaped repeatedly kicking and stomping on the head of a 16-year-old inmate as he lay on the floor. An internal investigation found that Victor had used excessive and potentially deadly force. This finding would normally have never become public because of Section 50-a, a provision of the New York State civil rights law that shields the personnel records of law enforcement officers from public disclosure.
But Victor appealed the finding of the investigation to the state’s Office of Administrative Trials and Hearings (OATH). The office’s proceedings are traditionally available to the public, and much of the reporting about misconduct by Rikers Island guards like Victor is based on those records. On October 31, however, a New York State Supreme Court will hear oral arguments in a case brought by Victor, arguing that Section 50-a extends to records of OATH proceedings involving corrections officers. The New York Times was granted permission to intervene, and MFIA wrote a memorandum of law in support of a motion to dismiss Victor’s request.
Victor’s is only the latest of many invocations of Section 50-a to restrict access to police records. The state legislature passed the provision in 1976, to prevent criminal defense lawyers from using “unsubstantiated and irrelevant” allegations to undermine officers’ credibility in criminal cases. But through a broad interpretation of “personnel record,” New York courts have systematically expanded the coverage of the provision, without articulating why. Exploiting the courts’ acquiescence and loose drafting in the provision, lawyers for the city have argued that inmate grievances, transcripts of open disciplinary hearings, and shooting reports all constitute personnel records under 50-a. In August, citing 50-a, the New York Police Department stopped publicly posting its “Personnel Orders” bulletin, which provided information on officer disciplinary actions and increasingly shields officers’ histories of misconduct.
In a period of heightened scrutiny of law enforcement, personnel records provide one of the few windows into agencies’ inner workings. It is time to repeal 50-a, which makes it much too easy to slam shut that window.
In July 2015, the New York Legal Aid Society filed a request under the state freedom of information law for summaries of previous, substantiated misconduct findings and disciplinary recommendations against Officer Daniel Pantaleo, who killed Eric Garner with a fatal chokehold on Staten Island. In a notable departure from much of the legal precedent, a state trial court ordered that the documents be released, but the city is currently appealing the ruling using Section 50-a. More than a year after the court’s decision, the NYPD has released no disciplinary findings regarding Officer Pantaleo.
Summaries of officers’ past misconduct become even more essential after deaths like that of Eric Garner. That kind of record can reveal failings in internal disciplinary systems, which allow officers with histories of excessive force to continue on the job. But the regular deployment of Section 50-a bars this kind of oversight of law enforcement and allows agencies like the NYPD to operate with less accountability.
The broad reading of Section 50-a also limits the effectiveness of other proposed accountability measures, like the use of body cameras. A New York trial court in August found that “where the footage pertains to an incident that subjects a police officer, firefighter, or corrections officer to discipline,” it may be exempt from disclosure under 50-a. The use of bodycams is designed to foster credibility, ensure accountability, and build trust between police officers and the communities they serve. Without public access to the videos, however, citizens must rely on law enforcement’s review of the footage and have no way of judging for themselves whether the footage is incriminating or exculpating.
The New York Committee on Open Government recommends repealing or amending Section 50-a. The section is more restrictive than parallel provisions in the civil rights laws of other states, the Committee wrote, and it “defeats accountability, increases public skepticism and foments distrust.”
But ongoing litigation, which pits news organizations, non-profit legal services, and media activists against the city, has been generally unsuccessful in persuading state judges to read Section 50-a narrowly. Even in cases where a court orders the release of records, like those of Officer Pantaleo, a lengthy appeal prolongs release of the records. It would be far better to repeal the section.
No substitute legislation would be required to replace it. Under New York’s state freedom of information law, agencies can claim exemptions where disclosures would constitute an invasion of privacy, interfere with ongoing law enforcement investigations, or jeopardize public safety. But Section 50-a would no longer block public access to records required to hold law enforcement accountable when they have engaged in misconduct.
In January, New York State Assemblyman Daniel O’Donnell plans to introduce one bill repealing 50-a and another amending it. O’Donnell far prefers passage of the repeal bill. “The people are demanding a higher level of scrutiny of public employees than they have in the past,” O’Donnell said.
Transparency and accountability depend on access to law enforcement records. It is time to repeal Section 50-a so that it can no longer serve as a barrier to law enforcement oversight in the state of New York.
—Meenakshi Krishnan ’18