Newsday sues Nassau County Police Department to release police discipline records

In the final weeks of Jo’Anna Bird’s life, as many as 22 Nassau police officers ignored, downplayed or mishandled her repeated pleas for protection from the abusive ex-boyfriend who would torture and kill her.

The Nassau County Police Department has never provided a full public accounting of the actions, or inaction, that led to the young mother’s murder on March 19, 2009. It has never disclosed how top brass disciplined officers for misconduct that once prompted a top county lawmaker, after reading a confidential 2010 internal affairs report, to say they "ought to be ashamed to look at themselves in the mirror every morning when they get up to shave, much less be wearing the badge."

The county, acknowledging a "breakdown in the system," agreed in 2012 to pay $7.7 million in compensation to Bird’s family.

Now, nearly a decade later — and 12 years after Bird’s death — county Police Commissioner Patrick Ryder has declined to release the contents of that 700-page report into the lapses that produced one of his department’s most serious failures in decades.

After repeal of a law, known as 50-a, that had long barred public disclosure of police disciplinary records, Newsday sought access to the report, as well as to additional, unrelated police disciplinary files and to data from the department’s internal affairs system. Ryder maintained secrecy over most of the information, citing exemptions from state Freedom of Information Law including the unwarranted invasion of officer privacy.

In response, the media organization on Friday filed suit against the police department, stating in court papers, "Newsday wants to inform and educate the public about the processes and standards of police discipline so that the public can judge whether law enforcement agencies operate in the best interest of police officers and the general public."

The newspaper had sued twice before to access the Bird internal affairs report but was denied both times on 50-a grounds.

"By invoking new and baseless reasons to refuse disclosure of virtually all substantive information regarding the investigation and discipline of Nassau County police officers, NCPD is attempting to circumvent the edict of openness and transparency conveyed by the Legislature’s repeal of Section 50-a," the complaint alleges. "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."

Late Friday, Newsday informed aides to County Executive Laura Curran and Ryder that the suit had been filed. Curran spokesman Michael Fricchione said he could not comment on pending litigation. Ryder’s spokesman, Det. Lt. Richard LeBrun, wrote in an email: "Since the lawsuit was just filed today, the Police Department is unable to comment until our legal counsel has an opportunity to fully review the document."

The Democratic-controlled State Legislature and Democratic Gov. Andrew M. Cuomo had struck the four-decade-old confidentiality law from the books amid protests against last May’s police killing of George Floyd in Minneapolis.

Past New York State repeal efforts had stalled for years in the face of police union opposition, but in the movement that followed Floyd’s death, which included revelations that the officer who is charged with killing him had been the subject of at least 17 complaints, this was done in weeks.

Amending the Freedom of Information Law, the state mandated release of police disciplinary records ranging from complaints against officers to investigative findings, transcripts of departmental trials and punishments for broken regulations.

"People will have a right to know what disciplinary proceedings they've gone through," Cuomo said of police officers in the state, on the day he signed the statute. "And, by the way, the record can either exonerate or implicate. If the person has never had any disciplinary findings against them and no complaints, well, that will help exonerate them. So it will work both ways."

Newsday’s requests

Beginning in July, Newsday submitted FOIL requests to both the Nassau and Suffolk police departments, seeking access to disciplinary records that were related to highly publicized cases, to officers whose actions had negatively affected members of the public, and to the workings of each county’s internal affairs unit.

Between the two counties, Newsday requested files on a total 11 officers named as having been involved in 10 cases, including the accidental shooting death of a hostage, a videotaped beating of a motorist that led to criminal charges and arrests that judges dismissed after video recordings contradicted official police accounts. Newsday also sought records that would disclose the identities of all officers who were investigated in two additional cases, including Bird’s, as well as any discipline imposed.

Almost all of the conduct led to federal lawsuits against the police, and some have resulted in six- and seven-figure lawsuit settlements, totaling more than $12 million.

The $7.7 million Bird payout was the largest, followed by Nassau’s $4.4 million settlement with the family of the slain hostage, 21-year-old Hofstra student Andrea Rebello, in 2017, four years after an officer shot her as she was being held at gunpoint by a man who had broken into her off-campus apartment.

Seven months after Newsday submitted its requests, Suffolk’s police department has responded only by stating that it needs more time to process them. Because Suffolk’s delay in providing a response is essentially a denial of the requests, Newsday plans to file administrative appeals with the Suffolk PD.

Media aides to County Executive Steve Bellone and Police Commissioner Geraldine Hart did not respond late Friday to requests for comment.

In decisions personally upheld by Ryder, Nassau turned over 88 pages of documents — the majority of which the department had blacked out entirely, or almost entirely.

In the Bird case, for example, police turned over 43 pages of "concise officer history" forms for 15 different officers — documents that summarize all citizen complaints and internal affairs cases opened against sworn members of the force. The department, however, had completely covered in black the information on 27 of those 43 pages.

Where information was visible the department had covered all references to the specific nature of misconduct allegations beyond a broad category, such as "violation of department rules." It had also obscured what, if any, discipline the department imposed.

The Nassau force refused to reveal information not only in cases where the department had concluded that evidence had exonerated an officer, but also in matters where the allegations were neither proved nor disproved, were still under investigation or, in some cases, even when the department deemed that the charges had been "founded" — the equivalent of a guilty verdict — but did not impose discipline.

Between 2016 and 2019, the percentage of complaints against Nassau police officers that were deemed founded ranged from 8.9% to 13.9%, according to data released by the department late last year. The department didn’t publish how many of the remaining complaints were unfounded (meaning charges were untrue), undetermined (meaning the evidence did not prove or disprove the allegations) or still pending.

Nassau also denied Newsday’s request for access to data contained in the department’s internal affairs complaint tracking system. The information includes dates of complaints, categories of complaints — for example, excessive force allegations — and how and when the department resolved complaints.

Newsday sought the information with the goal of analyzing internal affairs performance indicators, including how long the department has taken to conclude internal affairs investigations and what level of discipline it imposed.

Asking a judge to compel Ryder to release the requested information, Newsday’s court papers challenge the department’s claim that state law still exempts many police disciplinary records from disclosure.

"It invented new reasons why the very types of records the Legislature explicitly intended the public to see should nevertheless remain secret and exempt from public scrutiny," a Newsday brief to be filed Monday states.

"In so doing, NCPD withheld entirely most all of the information requested by Newsday, including especially the internal investigative reports documenting the facts surrounding the alleged misconduct. Even the small handful of documents that it did ‘disclose’ were so heavily redacted as to be wholly void of any substantive information. This is clearly not the result the Legislature intended and not what the law requires."

Matches union resistance statewide

Nassau’s response closely matches tactics deployed by police forces and police unions across the state after media organizations, civil rights advocates and law firms submitted FOIL requests to local departments in response to the repeal of 50-a.

As one example, the New York Civil Liberties Union last September petitioned — with little success so far — most of the largest departments in the state for data including misconduct allegations, use-of-force policies, surveillance equipment, and employee diversity.

The misconduct allegations have become the most prominent front in the legal battle between those seeking records and those seeking to keep them secret. The NYCLU has intervened in numerous court cases after police unions sued to withhold information about almost all of the misconduct complaints that were not founded and also resulted in discipline.

"It is a woefully incomplete picture to only reveal disciplinary records that have actually resulted in a police department implementing discipline," said Bobby Hodgson, NYCLU’s senior staff attorney. "It is essential to the analysis of police accountability to know when police departments have declined to pursue charges, have declined to follow up on complaints, have dismissed complaints, why they've been doing that, and what the numbers are.

"If a particular officer has dozens of complaints against them, all of which have either been ignored or dismissed," Hodgson added, "that absolutely reveals something relevant about internal police accountability structures — and their deficiencies."

Police unions counter that the 50-a repeal was done in haste in response to political pressure and subjects police to heavier scrutiny than experienced by other public employees in the state.

"I don’t have issue with policy and procedures in place that would allow oversight of substantiated complaints of misconduct," Noel DiGerolamo, president of the Suffolk Police Benevolent Association, said in an interview late last year. "But I take exception to the all-or-nothing mentality that was pushed through by the Democrats."

DiGerolamo characterized the vote to repeal 50-a by Democratic legislators, many of whom had previously received police union support, as a betrayal.

"They promised us that they would always stand with law enforcement, [that] they understood the need of that privacy, and not to have false allegations, unsubstantiated allegations, exonerated cases, to just be open for review," DiGerolamo said. "And they promised they would stand with us and ensure that that did not happen."

James McDermott, Nassau PBA president, did not respond to requests for an interview to gain his viewpoints about what police disciplinary records must by law be released following the 50-a repeal. Presidents of the county’s detective and superior officers associations also did not return calls.

Long Island’s police unions are watching the progress of legal objections lodged by their counterparts upstate and in New York City, with DiGerolamo noting that the arguments "were going to affect the entire state."

NYPD unions have argued that their members would suffer irreparable harm with further release of information from a database of complaints against officers kept by the city’s Civilian Complaint Review Board. The board posted initial data last summer, but courts have stopped additional publication pending a ruling by a federal appeals court on the issue of whether the unfounded and unsubstantiated complaints should be withheld.

An upstate Rochester police union has argued in court that release of a database of police disciplinary records should be delayed until its members have time to fully review the material and suggest redactions for privacy reasons. The department’s top brass resigned last summer after release of police body camera recordings that captured the suffocation death of Daniel Prude, an emotionally troubled Black man whose head was placed under a hood by police after his family called for help with his erratic behavior.

In Schenectady, the local PBA sued to bar the city from releasing the records of an officer accused of using excessive force in an incident recorded on video.

In Buffalo, a public safety union asked a court to preemptively bar release of a broad range of documents pertaining to complaints that were unfounded or undetermined.

Two judges have interpreted the new law as generally favoring disclosure of unfounded, unsubstantiated and pending misconduct complaints, even as they cautioned that each request should continue to be considered on its own merits.

Stating that the repeal of 50-a was "widely lauded as a giant leap forward in government accountability and transparency, focused on restoring the public’s trust in the integrity of our police force," Schenectady County State Supreme Court Judge Mark L. Powers wrote in December: "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, "In this Court's view, even despite a risk of ‘over-transparency,’ our state legislature has spoken loudly toward its stated goal of improving racial discourse, particularly with regard to policing and especially as to policing of minorities and those suffering with mental health disorders."

Similarly, Erie County State Supreme Court Judge Frank A. Sedita III wrote in October: "Regardless of one’s thoughts about the wisdom of the [50-a repeal] statute, the anti-law enforcement bias of many of those who supported it, or its pernicious unintended consequences, the fact remains that it is the law of this state and it can only be set aside by a court when it clearly offends the Federal or State Constitutions."

Nassau’s arguments for secrecy

Nassau County police unions have not gone to court to block release of disciplinary records. Instead, the department has rejected disclosure, citing many of the arguments used by upstate labor organizations. Those stem from sections of the FOIL law that spell out when public agencies may withhold records from public view.

In three of its responses to Newsday, the department relied on a provision that protects civil servants from "unwarranted invasions of privacy." It argued that releasing records of internal investigations in which complaints were unfounded, undetermined, were still pending or were founded but didn’t result in discipline, would unjustifiably invade the privacy of officers.

The department claimed additional exemptions from disclosure. Withholding narratives that summarize internal affairs reports — or, in the case of the Jo’Anna Bird investigation, the entire report — the department said the documents were "inter- or intra-agency material," meaning the narratives are used to aid in the process of resolving cases, and are not "final agency determinations."

Newsday’s brief states that the county had failed to explain why completed internal affairs reports are not considered "final" documents, or how they could contain no factual material, which would be subject to disclosure, and instead be composed "entirely of exempt opinions."

To withhold the discipline imposed upon officers found to have violated department rules in the Bird case, the department stated that releasing additional information would cause officers to suffer unwarranted invasions of privacy. Responding to Newsday’s appeal, Ryder wrote for the first time that the law enacted when the legislature repealed 50-a did not cover police discipline that happened in the past, only the future.

But Powers, the judge in the Schenectady case, found such an argument unpersuasive, writing: "Statutory retroactivity to matters preceding enactment is often sanctioned, particularly where, as here, strong public policy considerations serve as the foundation for the new statutory scheme."

"Here, there is strong evidence that retroactive effect was intended by the legislature," he added.

Denying Newsday’s request for the computerized complaint records, Nassau police asserted that it hadn’t described the data understandably and that the request was so voluminous it would have to hire an outside vendor — which it couldn’t afford.

Although the department uses a widely available system to track internal affairs operations, Ryder rejected Newsday’s appeal by stating that officers compile that type of complaint information from numerous sources in the department.

"These are all attempts to reinstate 50-a under another name," the NYCLU’s Hodgson said.

With Matt Clark, Sandra Peddie and David M. Schwartz

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.