Federal appeals court rejects challenge to repeal of police ‘privacy shield’ law

A federal appeals court in Manhattan yesterday rejected the request of police and firefighter unions seeking to block the release of members’ disciplinary records.

The state legislature last year repealed section 50-a of the New York Civil Rights Law, which shielded law enforcement disciplinary records from public disclosure. Shortly after the repeal, the City of New York announced its intention to publish certain types of disciplinary records and provide other records upon request if they are disclosable under the state’s Freedom of Information Law. Several NYC unions representing uniformed members of NYC law enforcement agencies and FDNY sued in federal court, seeking to block disclosure of unsubstantiated, unfounded or nonfinal allegations of misconduct.

The U.S. District Court for the Southern District of New York in August denied the unions’ motion for an injunction and the unions appealed.

Yesterday, the U.S. Second Circuit Court of Appeals affirmed the district court’s decision, effectively making the records subject to public disclosure under the Freedom of Information Law.

The Freedom of Information Law generally requires disclosure of records unless disclosure constitutes an “unwarranted invasion of personal privacy.” That exemption covers information of a personal nature, such as medical, credit or employment histories. It does not prevent disciplinary complaints from being disclosed, with certain personal information redacted.

Section 50-a of the N.Y. Civil Rights Law was a blanket exclusion. It said that all personnel records under the control of any law enforcement agency or paid fire department were “considered confidential and not subject to inspection or review without the express written consent” of the officer or firefighter, except as may be mandated by lawful court order.

The repeal of 50-a was part of a police reform agenda proposed by Gov. Andrew Cuomo and adopted into law last year. It had been pursued for several years by civil rights and criminal justice reform advocates, but moved forward last year as part of Cuomo’s “say their name” reform agenda after the killing of George Floyd by Minneapolis police officers sparked outrage across the nation and focused public attention on police disciplinary procedures.

While some large police departments, such as NYPD, have complaints investigated by independent civilian review boards, locally, police officer discipline is handled internally.

In Riverhead, any complaints about Riverhead Town Police officers go to Chief of Police David Hegermiller, who handles the review with the Captain Richard Smith.

Hegermiller said in an interview last year he can “count on one hand” the number of serious complaints he’s seen in his years as chief. He said he has seen complaints involving racial allegations and profiling over the years, “but they are few and far between.”

He said he would welcome the addition of a civilian complaint review board to look at complaints after he reviews them.

“I tend to be pretty heavy-handed and I don’t tolerate this crap,” Hegermiller said. “But you have unions to deal with.
You have labor law attorneys to deal with. Then you have politics and politicians to deal with. And then you have DAs and federal prosecutors,” he said.

In Southampton Town, complaints are investigated first by a line supervisor, then reviewed by the captain, Southampton Police Chief Steven Skrynecki said in an interview last year. The investigation goes before a disciplinary review board, which makes recommendations to the chief, he said. If there’s criminality involved, the process also involves the DA, Skrynecki said.

Riverhead Supervisor Yvette Aguiar, who serves as Riverhead police commissioner, said she has “a concern regarding unsubstantiated claims and claims that may involve confidential sources or confidential records of information.”

Aguiar, a retired New York City police officer, said the town will “obviously follow the judicial ruling,” though the town attorney’s office will review all FOIL requests to make sure employee privacy is protected.