(WXIR-Rochester) The push to repeal one of the most restrictive police privacy laws in the country is gathering new steam across New York State.
Journalists and civil liberties advocates have long said that New York's so-called "Civil Rights Law 50-a" has been used to shield police disciplinary records from public scrutiny.
In the face of ongoing protests for racial justice, many elected officials--including even Rochester Police Locust Club President Mike Mazzeo--are now signaling their willingness to reform the law in the name of transparency.
But if police departments can legally destroy disciplinary records after as little as one year, will repealing 50-a be enough?
WXIR's Darien Lamen recently spoke with Ted Forsyth, a journalist with Rochester Indymedia and a member of the Police Accountability Board Alliance, about the significance of this latest push to repeal 50-a, and where it could potentially fall short.
Darien Lamen: Over the past week, there has been a renewed push in New York State to repeal a police privacy law that's among the most restrictive in the country. New York Civil Rights Law 50-a shields police disciplinary records from public scrutiny. But many officials, including some rather unlikely ones, say the law is a stumbling block to the kind of transparency and accountability that is needed from police departments in our current moment.
Joining me now by phone to discuss all this is Ted Forsyth. He's a journalist with Rochester Indymedia and a member of the Police Accountability Board Alliance. Ted, thanks for making some time to talk with us today.
Ted Forsyth: You're very welcome.
DL: So I wanted to start off just by asking you to lay out what is this state law 50-a and why was it first passed?
TF: So New York State Civil Rights Law 50-a basically says that all personnel records used to evaluate performance for continued employment and promotion under the control of any police agency shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, paramedic, corrections officer, peace officer, except as may be mandated by a lawful court order.
So what does that mean? It means disciplinary records, personnel files of all of those protected classes--police officers, firefighters, paramedics, corrections officers and peace officer--are exempt from FOIL, Freedom of Information Law requests that is a mechanism for every day civilians and citizens to use to gain an understanding of what their government's doing, who's doing it, and what resources they're spending on what they're doing. So it's really a way to essentially make completely opaque what ought to be completely transparent for the people of New York State.
DL: And what was the reasoning behind obscuring those records from public view?
TF: So in 1975 there was a case that came before the New York Courts called Farrell v. Village Board of Trustees. And the case essentially was brought by a civilian, a resident, of Johnson City, which is kind of near Binghamton. This resident wanted to get the investigative file and all the reprimands against police officers that were found to be double-dipping. So essentially, being paid by the city of Johnson City with their uniforms on while doing private security for a construction firm, and getting paid by that firm as well, right? So a judge heard this case and decided that the investigative materials were too sensitive. But the judge did release the reprimands of these officers to the citizen.
After that case concluded, it seems like the police unions around the state got together and said "we can never allow civilians, citizens to do this ever again." And this law 50-a was created and passed in 1975 and went into effect in 1976 with the sole intention of preventing the public from knowing what kind of discipline officers receive.
DL: Now as an independent journalist Ted, have you FOILed for information and been told 50-a covers this, we don't have to share it? How common is that?
TF: Many times. A couple of years ago Barbara Lacker-Ware and I put together a report and we looked at aggregate records from the Professional Standard Section of the RPD. You know, complaints against the police for use of force and the outcomes. And we found that out of nearly 1,200 complaints, 23 were sustained and of those 23, less than half of them actually led to discipline, the harshest discipline being suspension. But that's as far as we could get. And 50-a prevents us from knowing which officers; prevents us from knowing if these officers congregate or do their work in specific areas of the city; prevents us from knowing the severity of the force that they used in the complaints that come against them; and it prevents us from knowing exactly what discipline was administered, if any, for their violations of people's rights and their bodies.
DL: Now over the last five years or so, there have been numerous attempts to repeal this law in Albany. Ted, were you surprised to see over the last week or so Governor Cuomo say he would sign a bill repealing or reforming 50a, seeing the Rochester Police Locust Club President Mike Mazzeo say that he supports the repeal of 50a, and seeing Harry Bronson, Assemblymember Harry Bronson, saying that he was planning to co-sponsor a bill to repeal 50a when he returns to Albany, or when the legislature returns the session next week? Were you surprised to see all this movement all of a sudden around repealing 50a?
TF: I think it's refreshing to see the movement. It's been a long time coming. I think the [BLM] protests over the last weekend and into even like last night, forced the mayor [sic] into the position where he had to say something to try to calm people down and say we're going to make this more transparent.
Harry Bronson, I know we--I also work with a group called Enough Is Enough--we've had conversations with him where he seems amenable to this. I'm glad to see that he wants to do something. There's a bill by O'Donell to repeal. We support that.
And even Mike Mazzeo, when we had conversations with him in 2017 after the PAB report came out, he acknowledged that the department needs to be more transparent. So I think maybe from his position he sees this as a way to maybe withdraw some of the negative criticism he's getting. But yeah, I think my first reaction was, I feel refreshed that this is finally moving and it's not just being stonewalled.
DL: Well, finally, beyond 50a itself, are there other laws or regulations relating to the availability of police disciplinary records, and for example, how long they have to be retained, that you think are important to consider?
TF: Yeah. I mean, this is a really important consideration. I think that it's not just 50a, but it's all the laws that go into housing and maintaining and destroying records.
There is a schedule, it's called the Records Retention and Disposition Schedule MU-1. It was last revised in 2003. It says investigative records and disciplinary proceedings, including but not limited to statement of charge, transcript of hearing, notice of decision, letter of termination or resignation, letter of reinstatement, record of appeal procedure and correspondence... if a municipality passes this schedule, after 3 years a municipality can destroy those records. And there's an exemption here. It says, "note: records covered by this item may be destroyed before this retention date has been reached, if specified either in a union contract or settlement between the employee and the employer."
In this case, if the Locust Club has a contract with the city that says they can destroy personnel files within one year, this schedule allows that if the city has ratified it. So I'm still trying to figure it out if they have. I presume they have. But that's a real problem. We can't let disciplinary records just go away or be destroyed legally because, you know, officers don't want their dirty laundry aired. I mean that's not going to solve the problem. So those records need to be held permanently. They need to be maintained constantly. And they need to be available for people to investigate.
Darien Lamen is news producer/director for WXIR Community Radio. He can be reached at firstname.lastname@example.org.