Watchdogs Urge Governor to Sign 50-a Repeal Bill Immediately

Governor Andrew M. Cuomo                    VIA EMAIL
New York State Capitol Building
Albany, NY 12224

June 10, 2020

Re: Please Sign 50-a Repeal Bill Immediately

Dear Governor Cuomo:

Our groups urge you to sign into law S8496/A10611 (Bailey/O’Donnell) immediately without modification or chapter amendment. The bill passed the Senate and Assembly yesterday.

This legislation would repeal Civil Rights Law section 50-a and provide for public disclosure of the disciplinary records of police, probation and corrections officers. Public Officers Law Article 6 (the Freedom of Information Law, or “FOIL”) section 87 would be amended and new subdivisions 6-9 would be added to section 86 to make certain “law enforcement records” that were “created in furtherance of a law enforcement disciplinary proceeding” subject to public disclosure. Additional privacy protections would require redaction of personal information in records.

The state’s Freedom of Information Law (“FOIL”) is among New York’s most important transparency and government accountability tools. FOIL presumes that the public should have access to government records unless excepted under specified categories, such as an unwarranted invasion of personal privacy, endangering someone’s life or safety, or disclosure of trade secrets. FOIL allows New Yorkers to understand how the government they authorize and fund operates and provides the facts necessary for accountability, oversight and reform.

In 1976, the Legislature approved Civil Rights Law section 50-a, adopted to protect law enforcement personnel from having unsubstantiated complaints in their “personnel records” used to discredit them in cross examination during criminal proceedings. Through a series of court cases Civil Rights Law section 50-a has been transformed from a limited exception to the state policy favoring disclosure to a nearly impenetrable shield. In the absence of the Legislature having defined the term “personnel records” in statute, the courts have given it an expansive reading resulting in the denial of virtually all records access requests pertaining to law enforcement personnel.

For example, in Luongo v. Records Access Officer, Civilian Complaint Review Board, the Appellate Division, First Department covering Manhattan reversed a Supreme Court decision and denied access to information in the file of Daniel Pantaleo, the New York Police Department officer whose choke hold killed Eric Garner on Staten Island in July 2014. The appellate court found that the records of substantiated complaints against officer Pantaleo were exempt personnel records under Civil Rights Law section 50-a. The panel of judges in Luongo said it was constrained “to apply the law as it exists, and as interpreted by controlling Court of Appeals precedents.”