Nassau, Suffolk police extend court fight over officer discipline records

Long Island’s largest police departments are appealing state court rulings that require release of officer disciplinary records under New York's public records law.

The appeals will extend a legal battle over the files into a fourth year.

Nassau and Suffolk police filed requests last week to overturn separate late-November decisions that favored Newsday. Newsday sued after the departments refused to make public most police misconduct records requested in 2020 under the state's Freedom of Information Law. 

Despite that year’s repeal of a state law that long provided blanket secrecy to police personnel files, the departments argued that the vast majority were still not subject to public disclosure. Releasing anything but substantiated allegations of wrongdoing that led to punishment, they said, would be an invasion of an officer’s personal privacy under existing FOIL law.

The Nov. 22 ruling against Nassau, by the state Appellate Division’s Second Department in Brooklyn, and the Nov. 21 ruling against Suffolk, from a state Supreme Court judge in Riverhead, rejected that argument. The appellate panel and lower-court judge each said there was no blanket privacy exemption for unsubstantiated police misconduct allegations, and that the records must be released — subject to only precise, justified redactions of personal information.

Most of the few records that the police departments did provide to Newsday had been redacted to the point of being indecipherable.

Nassau appealed the Second Department decision in a Dec. 4 motion to reargue before the panel. Should that fail, it requested permission to appeal to the New York Court of Appeals, the state’s highest court.

The Court of Appeals already is scheduled to hear a similar case brought by the New York Civil Liberties Union against Rochester police.

Robert Van der Waag, a Nassau deputy county attorney, argued in the police department’s appeal that the state’s 2020 repeal of the “50-a” secrecy law cannot be applied retroactively to publicize disciplinary decisions from the past. 

“Officers acted and operated according to the laws in existence at the time and this Court did not grapple with the fundamental unfairness of turning over records created at a time when those records were fully exempted under FOIL,” Van der Waag wrote.

While current law may not provide a blanket privacy exemption, he acknowledged, “at the time the records sought by Newsday were created, there was a statutory blanket exemption in place.”

The Second Department decision had said Nassau offered “no support” for its argument that the 50-a repeal was not meant to be applied retroactively.

Attorneys for Suffolk police on Dec. 8 filed a single-page notice that the county was appealing the lower-court decision to the Second Department, which already had ruled in favor of Newsday on the similar Nassau case.

Spokespeople for Suffolk and Nassau counties did not respond to requests for further comment about the appeals.

Alia L. Smith, the Manhattan-based attorney who represented Newsday in the cases against the police departments, said in a statement that Newsday was “disappointed” the counties were not immediately complying with the orders, despite three different state appellate divisions having already ruled in favor of wider release of disciplinary files.

The state’s 50-a repeal passed in June 2020 after the police killing of George Floyd in Minneapolis and nationwide calls for police reform. State lawmakers who supported the repeal said it was meant to improve transparency of the clandestine police internal affairs system.

Denied most of the disciplinary files, Newsday obtained internal affairs reports and other critical documents from sources and federal lawsuits to piece together its 2022 “Inside Internal Affairs” series. The series revealed the departments often imposed little or no penalties on officers in cases involving serious injuries or deaths of civilians.

“Given the strong action of the Legislature and the unanimous decisions of the appellate courts, however,” Smith wrote, “Newsday remains very optimistic that once all the police departments’ means of delay are finally exhausted, they will be required to disclose records shedding light on complaints … they have hidden from public view for so long.”

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.