Scrutiny of police activity has been a hot-button issue in recent years, and days, both nationally and locally. It goes without saying that law enforcement officials have an almost impossible job. With mass shootings an almost weekly occurrence and the unpredictability of violent crime, those who protect us face unimaginable obstacles.
Public scrutiny, however, should not be considered an obstacle. In June 2020, the New York state Legislature repealed a section state law to require government agencies — local and state police departments — to turn over disciplinary records involving police officers.
This change in law involved New York Civil Rights Law Section 50-a, which was originally passed in 1976 to keep police disciplinary records out of the hands of criminal defense lawyers, and the media. This largely kept elements of police misconduct cases far away from public scrutiny. Facilitating public scrutiny of police disciplinary records lets the public know about those sworn to protect them and those who may have complaints against them, and possibly serve as a deterrent to future infractions.
The old policy seemed to contravene the operating principle of the state Freedom of Information Law (FOIL): the presumption that public records should be released upon request — unless they fit into one of the narrow statutory exemptions — to allow the public to have a greater understanding of what our government does.
After the repeal of 50-a, requests for police disciplinary records trickled in, led in part by media organizations and the New York Civil Liberties Union. But the information did not immediately flow. Instead, agencies all over the state, including the city of Syracuse/Syracuse Police Department, denied the requests, funneling them into both administrative review and later litigation.
In denying the requests involving police misconduct, agencies cited legal standards pointing to the “unsubstantiated” nature of some complaints and because those records might constitute an “unwarranted invasion of privacy.”
In November, the Appellate Division for the Fourth Department, in Rochester, issued opinions in two cases involving requests for police records in both Rochester and Syracuse. The court largely rejected the “blanket” exemption of these types of records from disclosure.
Even though the appellate decisions ordered the agencies to turn over the documents, the Syracuse Police Department informed the NYCLU that the records will not be turned over until September 2025, almost five years after the NYCLU initially requested the information, said Bobby Hodgson, the NYCLU lawyer handling the cases.
While there have been legal challenges all over the state on the withholding of police records under FOIL, the November decisions were the first to hold that the wholesale withholding of police records violated the public records law.
Since then, the requests have been reprised and they are largely stuck in an administrative morass. It is important to note that many of these records requests are extensive, sometimes seeking thousands of pages of documents, which must be reviewed for private information and either specifically withheld or more reasonably redacted. The request to the Syracuse Police Department seeks extensive records dating back to 2000.
It takes personnel, time and money to find and redact these records, resources that government agencies might not have. There is a point, however, where practical realities cease and stonewalling begins.
Some of this give-and-take is part of the tense adversarial system between government officials and the press and advocacy groups. Many reporters experienced with filing public records requests have encountered these tactics; they are sometimes aimed at frustrating the process and keeping public information away from the public.
The legislative justification stated: “Repeal of §50-a will help the public regain trust that law enforcement officers and agencies may be held accountable for misconduct.”
Public review might reveal the ugly reality of police misconduct. But in some cases, it might also clarify what actually transpired. There have been examples of this with release of records such as body-worn camera video, which lets viewers ascertain facts and make their own interpretations.
Supreme Court Justice Louis Brandeis famously wrote that “Sunlight is said to be the best of disinfectants, electric light the most efficient policeman.” This is still relevant today. Public review allows citizens to understand how government officials operate in the public interest, whether from the president to the local dog catcher, and everyone in between.
Perhaps rather than fighting to keep these records secret, what if these agencies assigned those lawyers to review the documents for actual privacy concerns and make redactions? Instead, we have years of costly litigation and administrative process.
Maybe the public is learning how government operates after all.
This column was originally published as a guest column on syracuse.com. It is being republished on quillmag.com as part of the Society of Professional Journalists‘ Sunshine Week activities. Feature photo by Pixabay.
Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the Newhouse School at Syracuse University.
Tagged under: Freedom of Information Law, New York state Legislature, Open Records, Police misconduct, Sunshine Week
