New York State Legislature Opens The Door To The Disclosure Of Law Enforcement Disciplinary Records Through Foil

On June 6, 2020 Section 50-a of the New York Civil Rights Law was repealed in its entirety with the passage of Bill S8496. Enacted in 1976, Section 50-a protected the personnel records used to evaluate performance toward continued employment or promotion of police officers, corrections officers, and firefighters/paramedics employed by the State or political subdivisions. As evidenced by the Sponsor Memo, the recent movement towards greater transparency in law enforcement activities led the New York State Senate to draft a bill that would repeal Section 50-a, and effectively allow the majority of previously-protected law enforcement disciplinary records to be disclosed to the public.

At the same time, on June 6, 2020, Article 6 of Public Officers Law (“FOIL”) was amended to allow for and enumerate certain categories of law enforcement personnel records that must now be disclosed to the public. Under the new amendment, “law enforcement” refers to police officers, corrections officers, firefighters, and paramedics/ EMTs. Records subject to disclosure under the new law include, but are not limited to: “(a) the complaints, allegations, and charges against an employee; (b) the name of the employee complained of or charged; (c) the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing; (d) the disposition of any disciplinary proceeding; and (e) the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee.”

Perhaps the most controversial and surprising provision of the new law is that which appears to permit the disclosure of the medical records obtained during the course of or mandated by an agency's investigation. Records relating to the use of an employee assistance program, mental health service, or substance abuse assistance service fall under this provision as well. 

Not all police, corrections, firefighter, and paramedic/EMT personnel records are subject to full disclosure, however. The new law provides that a law enforcement agency may redact records pertaining to technical infractions. A technical infraction is a minor rule violation, “solely related to the enforcement of administrative departmental rules that (a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person's investigative, enforcement, training, supervision, or reporting responsibilities.” While this definition provides a framework, it is quite vague and is sure to create gray areas. 

The law creates further uncertainty as it remains to be seen whether unsubstantiated complaints and records from pending disciplinary proceedings must be disclosed. On July 23, 2020, a federal court judge from the Southern District of New York issued a temporary restraining order that stays the disclosure of unsubstantiated and non-finalized complaints or settlement agreements. Similarly, existing portions of New York’s FOIL law would seem to prohibit the disclosure of records from a proceeding that has not been finalized.

Though many have lauded the repeal of Section 50-a, there is no question that it will create new challenges for municipalities attempting to navigate the already-complex FOIL laws. Until more formal guidance is available, municipalities will largely be left on their own to decide whether certain documents are subject to disclosure. Disciplinary records often contain very personal and sensitive information– information that was long considered confidential. As such, always using a standard procedure to determine which documents should be disclosed is the best way to help eliminate controversy. CM&R has created a step-by-step protocol for responding to requests for law enforcement disciplinary records and has already begun working with its municipal clients to review documents and draft responses. 

Please feel free to contact Jonathan DeJoy at (845) 565-1100 with any questions or comments.