When New York protestors first began holding signs calling for the repeal of 50-a, most of us had to google what this meant. Two weeks later, on June 9th, 2020, the repeal of New York Civil Rights Law §50-a passed in both the New York State Senate and Assembly along party lines, after years of being back-logged.[1] This was signed into law by Governor Andrew Cuomo three days later.[2]
Enacted in 1976, section 50-a states:
All personnel records, . . . [are] not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer . . . except as may be mandated by lawful court order.3
In short, this provision prevents the public from viewing officers’ disciplinary records.4 Critics of 50-a believe the provision has become outdated and has left police unaccountable for misconduct. Proponents of 50-a argued that this statute was necessary to protect the privacy of police officers and to protect officers against retaliation due to allegations of misconduct. To understand what the repeal of 50-a means for New Yorkers and for New York police unions, it’s helpful to evaluate the arguments purported for and against 50-a’s repeal.
First, proponents for the repeal of 50-a argued that 50-a’s mere existence created issues with accountability.5 New York was one of the last states preventing public access to officers’ personnel records, which could reveal disciplinary actions for everything ranging from fixing tickets to killing civilians.6 In most other states, where there are no statutes akin to 50-a, the public has the right to know if an officer has a history of misconduct.7 When Tamir Rice, an African-American 12-year-old boy was shot by police in 2014, Ohio newspapers could immediately access the officer’s personnel records because of Ohio’s laws.8 Proponents thus argued that the main goal behind the repeal of 50-a, would be not only be to help get justice for victims of police brutality, but also to prevent it from occurring in the first place by holding officers with history of misconduct accountable in the public eye; thereby officers would be more likely to take care when performing their job.9
Second, proponents for the repeal of 50-a argued that victims would be able to learn the outcome of complaints to the Civilian Complaint Review Board, which handles allegations of police misconduct.10 Before 50-a’s repeal, information about the disciplinary actions applied to officers found to have committed misconduct was shielded from the public.11 By making records available, people would be able to hold the police department accountable for allowing corrupt officers back on the job-instead of taking appropriate disciplinary actions. Recent events have shown just how powerful public opinion can be in holding law enforcement agencies responsible for their employee’s actions.12 According to the executive director of the New York Civil Liberties Union, Donna Lieberman, “[r]epealing 50-a is a critical step towards ensuring that the public can be an effective check on police abuse.”13 In essence, this would not only effect how police officers behave on the job but also put pressure on police unions and disciplinary boards to regulate officers appropriately.
Third, those in favor of repealing 50-a argued its repeal would aid in judicial efficiency. 50-a allowed for disclosure of personnel records under a court order but this can be a cumbersome and ineffective process.14 Under 50-a, the judge determined what records were relevant to the action, and disclosed only this information. 15 If parts of the officer’s record were barred, this placed the burden on attorneys to show how this material was relevant to the case–assuming that attorneys knew that there was more relevant material in the record. 16
Lastly, it’s argued that the original 1976 rationale behind 50-a, was no longer relevant. The law was enacted to (1) prevent defense attorney’s from hounding officers with irrelevant information from their employment file and (2) to prevent attorneys from impeaching officers based on unverified allegations of misconduct.17 But judges already prevent cross-examinations based on irrelevant information.18 Also, complaints against police officers are investigated.19 Therefore, proponents for 50-a’s repeal argued that an officer’s credibility would not be attacked based on unchecked claims of misconduct.20
In contrast, opponents of the repeal of 50-a argued that the repeal of the provision would endanger officers and their families.21 In a time when the public is becoming increasingly outraged against the police, the PBA Labor Union argued that officers will be met with retaliatory actions if their personnel information is accessible to the public.22 While the NY Freedom of Information Law and the New York Public Officer’s law prevents disclosure of officers’ home addresses, phone numbers, and other “unwarranted invasions of personal privacy,” those that favor 50-a worry that names and precincts may easily be used to find where an officer lives. 23 Moreover, there is concern that, because phone numbers and social media can easily be found, officers will be more vulnerable to harassment or threats from organized crime groups. 24 According to New York City’s PBA president, Patrick Lynch, “[t]o suggest that police officers will be safe so long as their addresses are kept confidential is both naive and irresponsible.” 25
In the past, some members of the public have tried to obtain public worker’s personal information to harass employees. In 2018, Gov. Cuomo signed an executive order to prevent state agencies from releasing state worker’s personal contact information, in order to protect public employees.26 This action came as a result of certain anti-union groups contacting public employees, mainly educators, at their homes in order to discourage union-membership.27 Even though addresses and cell phone numbers are generally protected, these groups were able to discover contact info through freedom of information policies and used it to conduct an attack against public employees.28
These groups argued that public employees are funded by tax-payers and therefore, the public has a right to their personal information.29 “While the goal of transparency in government is laudable, it must be tempered against the individual rights of public employees.”30 Some believe that video and audio recordings of police officers are enough to hold officers accountable, and any more would infringe on their privacy rights.31 While prior serious misconduct would be disclosed to the public by repealing 50-a, so would harmless uniform infractions. Moreover, the repeal of 50-a affects more than just police; it affects firefighters and corrections officers. 32 Advocates for keeping 50-a wonder whether the repeal of 50-a will start a trend towards the disclosure of personnel information from other public employees’ records, which would appear to be in contrast to the executive order signed just two years ago. For example, currently, people can look up a New York educator’s credentials and wages but not disciplinary actions taken against them.33 Teachers’ unions would likely oppose the disclosure of personnel records for similar reasons as the police unions: to protect teachers from harassment and afford them some of the privacy that non-public sector employees enjoy. For these reasons, supporters of 50-a, including the NYPD, advocated for an amendment of 50-a rather than a full repeal.34
The arguments for and against the repeal of 50-a illustrate why the legislation was so contested, and why it’s repeal is so historic. In the months to come, arguments for and against this type of legislation will be relevant as police unions inevitably have to restructure and deal with how discipline of police officers is handled.
By: Valerie Timmerman
[1] See Dennis Slattery, New York Lawmakers Vote to Repeal 50-a, Making Police Disciplinary Records Public, N.Y. Daily News (June 10, 2020, 2:10PM), https://www.nydailynews.com/news/politics/ny-legislature-50a-transparency-george-floyd-20200609-yew7soogazfmdg3cr3xlsbmwye-story.html.
[2] See In a Historic Victory, Governor Cuomo Signs Repeal of 50-a into Law, Innocence Project (June 12, 2020), https://www.innocenceproject.org/in-a-historic-victory-the-new-york-legislature-repeals-50-a-requiring-full-disclosure-of-police-disciplinary-records/.
3 N.Y. Civ. Rights art. 5, § 50-a (1976).
4 See City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct- Thirty Two Other Organizations Support, N.Y.C. Bar (Apr. 20, 2018), https://www.nycbar.org/media-listing/media/detail/city-bar-urges-repeal-of-civil-rights-law-50-a-to-allow-public-disclosure-of-police-records-relating-to-police-misconduct.
5 See id.
6 See id; Ginia Bellafante, Why Secrecy Laws Protecting Bad Officers are Falling (June 9, 2020), https://www.nytimes.com/2020/06/05/nyregion/police-records-50a.html.
7 See City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct, supra note 4.
8 See Caroline Cournoyer, How Much Privacy Do Public Employees Actually Have? (Sept. 24, 2018), https://www.governing.com/topics/workforce/gov-government-public-employee-privacy.html.
9 City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct, supra note 4.
10 See Christian Covington, Opinion: Fix 50-a, the Right Way (June 7, 2020), https://citylimits.org/2020/06/07/opinion-fix-50-a-the-right-way/.
11 See id.
12 Ryan W. Miller, Amid George Floyd Protests, Police fired, Charged with Excessive Force (June 9, 2020, 4:47 PM), https://www.usatoday.com/story/news/nation/2020/06/08/george-floyd-protests-have-sparked-some-police-firings-charges/5318019002/ (describing how the four officers who caused George Floyd’s recent death were fired and then charged for their roles in his death after protests erupted around the country).
13 City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct, supra note 4.
14 See City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct, supra note 4.
15 art. 5, § 50-a (1976).
16 See City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct, supra note 4.
17 See id.; See NYPD Supports Changes to Disciplinary Records Law, NBC N.Y.(Oct. 25, 2019, 1:55AM), https://www.nbcnewyork.com/news/local/nypd-supports-changes-to-disciplinary-records-law/2022359/.
18 See City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct, supra note 4.
19 See id.
20 See id.
21 See NYPD Supports Changes to Disciplinary RecordsLaw, supra note 17; Michael O’Keefe & Nicole Fuller, Advocates Cheer 50-a Reform While Law Enforcement Urges Caution (June 10, 2020, 10:20 AM), https://www.newsday.com/long-island/50-a-police-misconduct-records-1.45523648.
22 See NYPD Supports Changes to Disciplinary RecordsLaw, supra note 17.
23 Id.; See City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct, supra note 4.
24 See O’keefe & Fuller, supra note 21.
25 NYPD Supports Changes to Disciplinary RecordsLaw, supra note 17.
26 See Caroline Cournoyer, supra note 8.
27 See id.
28 See id.
29 See id.
30 Dietre C. Dammeier, Fading Privacy Rights of Public Employees, 6 harv. law & pol’y rev. 297, 307 (2013).
31 See id. at 307.
32 art. 5, § 50-a (1976).
33 See Steve Reilly, How to Look up the Background of Teachers in Every State (Mar. 4, 2016 3:32 PM), https://www.usatoday.com/story/news/2016/02/13/state-teacher-background-lookup-resources/80355350/.
34 See NYPD Supports Changes to Disciplinary RecordsLaw, supra note 17.
