By Brendan J. OReilly
In light of the New York State Legislature’s repeal of “Section 50-a,” a provision of state law that had stopped police departments from disclosing personnel files, Organización Latino-Americana of Eastern Long Island has filed Freedom of Information Law requests with East End towns and villages for police disciplinary and complaint records.
The East Hampton-based nonprofit agency, known as OLA, is still waiting to hear from a couple of police departments, but those that did respond have all denied the Freedom of Information Law requests, citing privacy law and the terms of settlements. However, Andrew Strong, OLA’s human rights attorney, said OLA will appeal the denials and will take the municipalities to court, if necessary. He also pointed to a recent federal ruling that gives him confidence that police departments will ultimately have to disclose the records.
The ruling came in a case before the U.S. District Court for the Southern District of New York between a collection of police and fire unions and New City Mayor Bill de Blasio. The unions are seeking to block New York City from releasing any records sought by the public under 50-a repeal, which Governor Andrew Cuomo signed on June 12
District Judge Katherine Polk Failla read her decision during an August 21 virtual court session, which OLA obtained a transcript of. Judge Failla denied the unions’ request to enjoin the release of both records pertaining to unsubstantiated complaints and disciplinary records that were subject to settlement agreements or ongoing litigation.
“That judge in the Southern District has said no, you must hand over those records even if they are unsubstantiated or in litigation,” Mr. Strong said.
He explained that the judge’s rationale for her decision came down to: “You can’t bargain away the public’s interest.”
He added that the public’s right to the information generally supersedes settlement agreements, so those agreements are not enforceable.
“An agency isn’t allowed to immunize documents from disclosure by shoving them into a settlement agreement, because that’s bargaining away the public’s right to know,” he said, crediting the judge with making that point.
Mr. Strong said that the way the Freedom of Information Law, or FOIL, works, is that unless a record falls under a specified exemption, then a government agency must disclose the record when it is requested.
Section 50-a had provided an enumerated exemption that stated that personnel folders were blocked from disclosure, he said, and now that it has been repealed, that exemption falls away.
The judge was not sympathetic to the unions’ argument that unsubstantiated complaints were protected by privacy exemptions.
“That was also addressed right on the nose by the federal judge, and she found it entirely lacking in any substance,” Mr. Strong said. “So she ordered that unsubstantiated reports need to be released.”
He noted that while the Public Officers Law does mention privacy, it does so “really specifically.”
“It doesn’t touch on unsubstantiated reports,” he said. “That’s not part of the privacy law.” The privacy law enumerates specific exemptions to FOIL that concern medical records, credit histories, the sale of names or addresses for solicitation or fundraising, etc, he explained, but it does not provide a generalized right to privacy.
“It really is galling because this isn’t a gray thing — this isn’t a gray area,” Mr. Strong said.
“50-a was repealed, and 50-a covered, specifically, these disciplinary [records] and complaints from police departments, and it was repealed by two-thirds majority in both the [Assembly] and the Senate. It was not a squeaker of a law.”
He said it really bugs him that police departments are taking a selective approach to the law.
“Everybody is still tying themselves in knots trying to come up with ways to not disclose,” he said.
While East Hampton, Riverhead and Southold towns haven’t responded yet to OLA’s records requests, they are still within the time period allowed under FOIL to reply, Mr. Strong said. Meanwhile, Southampton Village, Southampton Town, Shelter Island Town, East Hampton Village, Sag Harbor Village, Westhampton Beach Village and Quogue Village all replied by saying they will not disclose the records.
He said he doesn’t understand why local departments won’t disclose the records because he is confident the records will show they are professional police forces that are doing as good as job as one can possibly do regarding discipline and complaints.
“And still, it’s just like a fight to the bitter end to release these things,” he added. OLA is preparing appeals to ask town and village clerks to overturn the FOIL denials. If the appeals fail, then the next step is for OLA to take the municipalities to court, Mr. Strong said, but he doesn’t see why it should have to get to that point.
“It just seems like an unnecessary hurdle,” he said. “It just seems like releasing this data is in everybody’s best interest, to me. It builds trust between the community and police. It shows people that the police are doing a great job. It’s what the law says.”
In addition to 50-a repeal, another state effort to improve police department transparency and relations with the public is the governor’s requirement that every municipality with a police department establishes a Community Law Enforcement Review Committee to review police practices and submit a draft report to the state by April 2021.
OLA Executive Director Minerva Perez is a member of Southampton Town’s review committee, and she wants the committee to take up the issue of adherence to 50-a repeal. If members of the public know that their complaints, suggestions and even compliments for the police will actually be heard, they will be more apt to speak out, Ms. Perez said
“I don’t care what’s buried in some police department’s website about how to make a complaint,” she said. “The majority of folks, especially the folks who are most vulnerable, are not going to waltz into a police department and go up to the desk sergeant and make that complaint face to face. So we need to create a structure that actually works and breathes some life into it.”
Though the State Legislature could pass new legislation to make 50-a repeal easier to enforce, the OLA officials were not warm to the suggestion.
“The danger there is just like playing whack-a-mole,” Mr. Strong said. “You change that —” “— and they find something else,” Ms. Perez said.
The Express News Group — the publisher of The Southampton Press, The East Hampton Press and The Sag Harbor Express — also requested police disciplinary records after the repeal of 50-a and was similarly denied by all of the villages and towns on the South Fork.
In some cases, the denials came from the village or town clerk, and in others the denials came from the police departments themselves. What most of the denials had in common is that they cited pending litigation concerning records that were subject to settlements, and “unwarranted invasion of privacy.”