On Friday, June 12, New York Governor Andrew Cuomo signed legislation repealing a law which prevented the disclosure of law enforcement disciplinary records to the public. What records were not previously disclosed? What will now be available to the public? In this week’s blog, we dissect what the repeal of Section 50-a really means.
What is Section 50-a?
Section 50-a of the Civil Rights Law is often referred to simply as “50-a.” This section of the law permitted law enforcement officers to refuse disclosure of their personnel records. The 50-a exemption, adopted in 1976 by the state Legislature, applied only to law enforcement officers – not any other public employees.
“All personnel records used to evaluate performance toward continued employment or promotion … shall be considered confidential and not subject to inspection or review without the express written consent of such [officer]… except as may be mandated by lawful court order.” Civil Rights Law § 50-a(1).
Since its adoption, 50-a expanded in use. Most records that contain any information that could possibly be used to evaluate the performance of a police officer would routinely be withheld from the public. This included any disciplinary records which might bear on an officer’s character for truthfulness when testifying at trial. This is despite the state’s Freedom of Information Law (“FOIL”) allowing access to government records. The exemption thus prevented criminal defense lawyers from using these records in cross examination of police witnesses.
Repeal of Section 50-a
By repealing Section 50-a, law enforcement disciplinary records will now be subject to FOIL. This puts such records on par with all other government employee records. Personal information, such as medical information and social security numbers, will be redacted. And “technical infractions” need not be disclosed, which includes minor rule violations by law enforcement that are not of public concern.
Advocates for the repeal argue that this will increase systemic accountability through transparency. They also argue that the general rules and statutory exceptions of FOIL are sufficient in protecting police from unfair cross examination by criminal defense lawyers. FOIL also protects against disclosure which would constitute an unwarranted invasion of privacy. And courts have the ability to protect against improper cross-examination and determine if police records are admissible in a trial. Further, 50-a impeded disclosure of records even where known misconduct had occurred.
Yet there are many opposed to the disclosure of law enforcement records. For instance, Section 50-a already provided for disclosure of records pursuant to a court order if a judge determined their relevance to a legal proceeding. Others say that repealing the law would endanger police officers by making their personal information too accessible. Lastly, many officers are subject to retaliatory complaints from criminal defendants who are angry they were arrested. These baseless complaints may serve as fodder for cross-examination by criminal defense attorneys during trial.
Other Reforms Signed Into Law
Along with the repeal of 50-a, Governor Cuomo signed additional reforms into law on June 12, 2020.
- Instituted a ban on police use of chokeholds – There will now be criminal penalties when law enforcement uses a chokehold or similar restraint and causes serious physical injury or death.
- Banned false 911 calls based on race – It will now be a civil rights violation to call 911 to report a non-emergency incident involving a member of a protected class without reason to suspect a crime or an imminent threat.
- Appointed Attorney General as independent prosecutor for police-involved deaths – The Office of Special Investigation within the Office of the Attorney General will now be responsible for investigating and prosecuting cases where the death of a person follows an encounter with law enforcement.
Most of the reforms, including the repeal of Section 50-a, took effect immediately. The formation of the Office of Special Investigation shall take effect April 1, 2021.
- Office of New York State Governor, “Governor Cuomo Signs ‘Say Their Name’ Reform Agenda Package” (June 12, 2020). Available at: https://www.governor.ny.gov/news/governor-cuomo-signs-say-their-name-reform-agenda-package (last accessed June 15, 2020).
- Public Officers Law, Article 6, “Freedom of Information Law.” Available at: https://www.nysenate.gov/legislation/laws/PBO/A6 (last accessed June 15, 2020).
- Civil Rights Law, Section 50-a. Available at: https://www.nysenate.gov/legislation/laws/CVR/50-A (last accessed June 15, 2020).
- New York A.B. S8496 (2020). Available at: https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=S08496&term=2019&Summary=Y&Text=Y (last accessed June 15, 2020).