Nassau, Suffolk police bar access to most disciplinary files, despite repeal of secrecy law 

State legislators and then-Gov. Andrew M. Cuomo last year heralded the repeal of a law that imposed near-total secrecy on police disciplinary files, but Long Island’s two largest police forces assert they are still entitled to bar public disclosure of most such records.

For nearly 18 months, the Nassau and Suffolk county police departments have rejected or delayed numerous Freedom of Information Law requests submitted by Newsday and others, or provided records that were blacked out almost to the point of being indecipherable.

The departments’ refusals to open the requested records — including for officers who shot and wounded unarmed motorists, applied fatal force to a mentally ill arrestee and were accused of fabricating arrest reports — compelled Newsday to conduct an investigation of the internal affairs systems in both counties. Newsday also has sued both departments with the goal of establishing the public’s right to inspect police disciplinary documents.

Scouring federal lawsuits that alleged civil rights violations by officers, the investigation assembled records that had been entered into evidence, including department memos and deposition testimony by officers and claimants. Confidential sources and attorneys also shared internal affairs materials.

The information provided a foundation for case histories in which both county police departments had let officers escape all, or most, punishment despite substantiated wrongdoing in incidents that resulted in serious injuries or fatalities.

Since the law change took effect in June 2020, Newsday has submitted dozens of FOIL requests to Nassau and Suffolk police for disciplinary records. Most are still pending or have been substantially denied. The information sought by Newsday included:

• Portions of electronic databases kept by the Nassau and Suffolk police departments that track internal affairs investigations from complaint to case resolution. The data could be used to identify how often individual officers have been the subject of complaints; analyze, by officer, the prevalence of different types of complaints; calculate how long the departments take to resolve cases; and determine the departments’ record of substantiating complaints and imposing discipline or dismissing officers. New York City’s Civilian Complaint Review Board released similar data for NYPD officers under FOIL. In contrast, Suffolk’s department has failed for 17 months even to respond to Newsday’s request. Nassau’s department refused to release the information, contending that removing sections that are properly confidential would place an "undue burden" on the agency.
• Details about proven misconduct cases that Nassau police disclosed on its own website. The department last fall published a summary of the broad types of complaints that had been filed against officers from 2016 through 2019, including investigative results. The summaries highlighted "founded," or confirmed, allegations of unlawful conduct in nearly 30 cases and noted whether the unnamed officers were no longer with the department. In one case, the report showed a founded 2018 allegation of "sexual abuse" against an officer but did not list the officer as separated from employment. Nassau police refused to release information to Newsday that would have matched the cases listed online with the names of officers, the nature of their offenses and how they were disciplined. Its denials cited internal case numbers that could not be compared against the incidents listed on the website.
• The disciplinary records of 18 Suffolk officers and a half-dozen Nassau officers who had been accused of offenses including the use of excessive force, accessing confidential information, harassment, bribery and concealing information from supervisors.

Repeal of 50-a

In 1976, the New York State Legislature, citing safety reasons, codified special privacy protections for sworn law enforcement members. Known as 50-a, the law exempted nearly all officer personnel records, including disciplinary histories, from disclosure under FOIL, making them off-limits to the public. Confidentiality often extended even to records introduced in public court proceedings.

After a Minneapolis police officer killed George Floyd in May 2020, nationwide calls for policing reforms pressured Cuomo and the Democratic-controlled State Legislature to repeal 50-a. Proponents noted that the numerous misconduct complaints against Floyd’s killer, Derek Chauvin, were made available to the public within days of the incident.

Discussing the 50-a repeal, New York lawmakers envisioned making similarly public the complaints leveled against local officers and whether or not the allegations were substantiated.

"I have nothing but utmost respect for the police, but I think the public should know who is policing them," the repeal's co-sponsor, Sen. Jamaal Bailey (D-Bronx), the Senate Codes Committee chairman, said at the time. "And I believe transparency could benefit the police by singling out bad actors."

Police departments and officer unions across the state took the position that disciplinary files wouldn’t automatically be open to inspection. They argued instead that FOIL would now govern which records had to be released, as happens with the personnel records of other public employees.

Michael O’Meara, board president of the New York State Association of Police Benevolent Associations, which lobbies on behalf of uniformed officers, said the 50-a repeal did nothing to strip members of important protections, such as a right to privacy regarding unproven allegations.

"We have to endure being falsely accused of things every single day," O’Meara, who is also president of MTA’s PBA, said in an interview.

Following the June 2020 repeal of 50-a, media organizations and civil liberties groups submitted scores of records requests to police departments across New York. Most of the departments, citing initial opinions from the Committee on Open Government, a state advisory body, responded that well-established exemptions still empowered them to withhold the majority of internal affairs documents.

FOIL permits public agencies to use their own discretion to withhold information about public employees that could cause an "unwarranted invasion of personal privacy."

Typically, police departments said that releasing the records of cases that did not end in substantiated findings of wrongdoing would violate officer privacy.

The departments excluded from release records where officers were exonerated, remained under investigation, or where the charges were deemed "unfounded" or "unsubstantiated," meaning what happened could not be proven one way or the other.

The Nassau County Police Benevolent Association, which represents the majority of uniformed officers in the county, recently argued that releasing such information would "present a danger to the lives of those officers."

"Such disclosure would enable the officers’ home addresses, telephone numbers, and family members’ names to be found with minimal effort through an internet search," attorneys for the union argued in a Nov. 24 filing in State Supreme Court that supported Nassau police’s refusal to release records to the New York Civil Liberties Union. "From there, these police officers and their families could be terrorized and attacked by those with whom they have had confrontations while on duty or members of the public who wrongly assume these officers committed the misconduct of which they are accused."

Responding to an earlier Newsday FOIL seeking the disciplinary files of six officers in highly publicized cases that involved serious injuries or deaths, Nassau police provided little more than heavily blacked out "Concise Officer Histories."

Such documents summarize complaints filed against officers, as well as their outcomes, but leave out any narrative description of the allegations, internal investigation or conclusion.

In those provided to Newsday, the department appeared to black out information about any case that did not result in a substantiated finding. And where the entries indicated that officers had violated regulations, the department concealed what they had done and, in most cases, whether punishments were meted out.

Applying repeal retroactively

But Nassau’s police force also refused to release the records even of the confirmed, or substantiated, complaints that resulted in discipline.

Most broadly, Nassau asserted that such cases closed before the repeal of 50-a remained sealed by law, including the findings of an internal affairs investigation that followed the 2009 murder of Jo’Anna Bird by her abusive ex-boyfriend. Police previously confirmed that some officers were disciplined for a failure to take proper action on complaints from Bird and her family and, in paying a $7.7 million wrongful death settlement, called the lack of response a "breakdown in the system."

In denying the most recent requests for those records, however, Police Commissioner Patrick Ryder has argued that collective bargaining agreements with police unions assumed that all disciplinary records, including those that confirmed misconduct, would be sealed and that releasing those that predated the repeal would also amount to unwarranted invasions of privacy.

O’Meara said officers generally support that interpretation.

"You can't change a law and say, it's illegal to cross the street on a green light, and then charge everybody that did it the day before you pass the law," he said. "That's not the way it works in the United States of America."

In its brief in the NYCLU suit, the Nassau PBA wrote: "In fact, the legislation repealing Section 50-a contains no language whatsoever that could possibly be interpreted to indicate it should be applied retroactively."

The PBA cited a decision from earlier this year by a Monroe County judge that cited existing collective bargaining rights as a reason not to apply the law retroactively.

"It would unlawfully violate NCPBA members’ accrued privacy rights to force the NCPD to disclose disciplinary and personnel records predating June 12, 2020," the PBA argued.

Ryder’s department hasn’t always been consistent.

While denying most records requests, it turned over to Newsday some redacted documents related to an officer, Charles Volpe, who was accused of defrauding the department in a disability claim and is waging a civil rights lawsuit against Ryder. One record that details the violations the department alleges Volpe committed, and includes descriptions of investigators surveilling him conducting physical activities outside his home, is dated February 2020.

The department’s FOIL response stated no reason for providing those records despite its claim that the 50-a repeal does not apply to records that predate the legislature’s action.

Volpe alleges that he is a victim of retaliation after refusing to be forced back to work as he dealt with legitimate injuries.

Suffolk’s police department has also taken the position that only confirmed allegations against officers are subject to disclosure. But it has released such records dating prior to the 50-a repeal.

Last spring, Newsday warned Suffolk that long delays in responding to FOIL requests amounted to an illegal denial of access to public information and would be grounds for a lawsuit. The department began then to make some records of confirmed allegations available.

It also released unsubstantiated complaints pertaining to former Chief James Burke, who served federal prison time for beating a handcuffed burglary suspect in 2012 and engaging in a yearslong cover-up that involved former District Attorney Thomas Spota and one of his top aides. Both were convicted for their roles.

"It remains the County’s general position that records of unsubstantiated, unfounded or exonerated allegations of misconduct against law enforcement officers are not accessible under FOIL," the department wrote in responding to a Newsday request.

"Nonetheless, in this case, James Burke has already pled guilty to acts of misconduct and many allegations against him have been made public. As a result, in this case, it has been determined that it is not an unwarranted invasion of the personal privacy of James Burke to release unsubstantiated allegations of misconduct in response to the present FOIL request."

Newsday's lawsuits

Filing its first lawsuit in February, Newsday argued in court papers that the Nassau County Police Department was "attempting to circumvent the edict of openness and transparency conveyed by the Legislature’s repeal of Section 50-a."

"The positions NCPD has adopted against disclosure have the effect of preventing oversight and accountability and can only sow further distrust among the public it is intended to serve, precisely the opposite of what the Legislature intended," the court papers stated.

In a 3½-page decision issued on Nov. 1, State Supreme Court Judge Thomas Rademaker ruled that the paper’s arguments were largely moot because the 50-a repeal placed police disciplinary records requests under FOIL and allowed departments to use discretion in applying exemptions.

"Where an agency has determined that disclosure would result in an unwarranted invasion of personal privacy, among other reasons, the requested records may be withheld in their entirety," he wrote.

Newsday has appealed.

Late last month, Newsday also filed suit against the Suffolk department, challenging its refusal to provide information in response to eight requests involving actions by more than two dozen officers. It alleged that the department had withheld "any ‘unsubstantiated, unfounded or exonerated’ complaints on a blanket basis."

"In responding to the Newsday FOIL Requests, SCPD has failed to provide specific, particularized, and legitimate justifications for withholding each requested document or portion thereof," lawyers for the newspaper wrote.

The county has yet to formally respond to the suit, and spokespeople for the police department and County Executive Steve Bellone did not respond to a request for comment.

Other representatives of media organizations, including WSHU, the National Public Radio affiliate covering Long Island and Connecticut, as well as the New York Civil Liberties Union, have resorted to legal actions against departments across the state. Some judges have directed police departments to provide the requested records, even as they noted the ability to assert limited exemptions under FOIL.

Last December, Schenectady County State Supreme Court Judge Mark L. Powers wrote: "It may well be true that a public employee (including a police officer) and/or his collective bargaining unit or labor union, views a particular record as private or embarrassing or its disclosure as a personal safety risk but, it is nonetheless now within the ambit of disclosure."

Powers also wrote that there was "strong evidence that retroactive effect was intended by the legislature," yet the Monroe County decision from earlier this year took the opposite view, causing more confusion in how the 50-a repeal is being applied by police departments and judges in different corners of the state.

And the response has left its original authors to consider further legislation to clarify the FOIL process.

Assemb. Danny O’Donnell (D-Manhattan), who co-sponsored the repeal with Bailey, said that court decisions backing wholesale withholding of police disciplinary documents should spur renewed legislative action.

"I do think that we, in New York and other places, need to examine what the mechanism is for the information to be out there," O’Donnell said. "But the first thing that had to be done is we had to get rid of 50-a. It was the gorilla in the room, so to speak.

"So the gorilla's gone. And now we have to see if there's ways to make it better."

By Paul LaRocco

paul.larocco@newsday.com@paullarocco

Paul LaRocco is a reporter on the investigations desk. Since starting at Newsday in late 2010, he has also covered Nassau and Suffolk county politics and government and the Town of Oyster Bay.