Editor’s Notebook: Behind the (Blue) Veil

Did anyone think this would be easy?

On June 12, New York State repealed a law that allowed police and fire departments to keep their disciplinary records secret. It was part of a package of reforms passed by the Legislature and signed by Gov. Andrew Cuomo to increase transparency at law-enforcement agencies following the deaths in police custody of Eric Garner in 2014 and George Floyd in 2020.

Naturally, being the nosy editor of a stubborn newspaper, I filed Freedom of Information Law (FOIL) requests with local departments to see their records. I chose 2010 as a starting point, reasoning that if there are any long-term “bad apples” (which I doubted), the records might show a pattern of complaints. 

Although agencies are supposed to respond to FOIL requests within about a month, it rarely happens, especially with the pandemic. In this case, the records have to be located and personal information such as addresses, phone numbers and Social Security numbers must be redacted. Departments can also withhold reports of minor violations of administrative rules.

In New York City, the records of the Civilian Complaint Review Board (but not the Police Department, which have been kept under wraps pending a ruling in a federal lawsuit filed by the police union) have been released from 1985 to date and give a hint at the numbers. The New York Civil Liberties Union posted the database, and of the 323,911 formal complaints, about 8,700, or 2.7 percent, resulted in disciplinary action ranging from a letter of reprimand to 12 officers who were fired. The offenses included using profanity and racial slurs to hitting or choking suspects.

In our FOIL requests, which I filed during the week after the law went into effect, I borrowed language from the law and asked for complaints, allegations and charges against any employee; the transcript and exhibits from any trial or hearing; the disposition of any proceeding; and the opinion or memorandum supporting the disposition and any discipline.

Here is a status report.

Dutchess County Sheriff’s Office

On Sept. 19, the department denied our request to see its disciplinary records, saying the county attorney had determined the law only applies to records created on or after it was passed — that is, June 12.

The county cited a 1932 state court decision (People v. Roper, 259 NY 635) that has been summarized as declaring that, unless stated otherwise, “legislation is not to be given retroactive effect.” It also noted that under a state retention schedule, local and county agencies only have to save investigative records and disciplinary proceedings for three years.

I asked John Kaehny, executive director of Reinvent Albany, which advocates open records, for his take. Dutchess County is “playing games,” he said. “There’s no doubt about the legislation’s intent [that police disciplinary records be made public], and they wrote the law in an incredibly prescriptive way while the rest of FOIL is much broader. It’s essentially lawlessness by police agencies and, in this case, the county attorney is trying to ignore and avoid the intent of the repeal.”

Shoshanah Bewlay is the executive director of the state’s Committee on Open Government, which issues advisory opinions about FOIL disputes (but has no enforcement power, so agencies tend to ignore the opinions unless they can be used to justify a denial). When I asked Bewlay about the Dutchess response, she said that, in her opinion, the law applies to all records in the agency’s possession. 

However, she also wrote in an opinion in July that agencies don’t have to reveal allegations or charges of misconduct in which discipline, if any, has not yet been determined or did not result in punishment because that release might violate the officer’s personal privacy. The same holds true of allegations that were found to be without merit, although the police department is often making those determinations.

I appealed the Dutchess denial and will let you know how it turns out. If denied, the only option would be to go to court, and agencies know that is an expensive proposition. I also filed a new request for records created on or after June 12 and was told that one disciplinary matter was in process but not yet completed. And I filed a request for any memos or emails from 2019 or 2020 that discussed the retention or destruction of disciplinary records. I’m curious if anyone, once the law was being discussed and then enacted, decided to clean house.

Dutchess County Jail

The agency said it had no records of “any disciplinary proceeding involving corrections officers or supervisors at the Dutchess County Jail” since 2010.

Putnam County Sheriff’s Office / Jail

The sheriff’s office said on July 17 that it needed more time. I emailed last week for an update.

Fishkill and Downstate Correctional

On July 10, the state Department of Corrections and Community Supervision denied our request, saying it was too “vague.” It said I could make a request for disciplinary records “for specific employee(s) providing name(s), location(s) and year(s) of employment, if known.”

Thankfully, the Empire Center (seethroughny.net) lists employees past and present at Fishkill Correctional. I extracted the names of 892 officers and supervisors and submitted that on July 11. I am not sure how this made the search easier, but the agency said it would reply by Oct. 15.

(The response echoes those received by reporters in Colorado after a law was enacted last year making police disciplinary reports subject to FOIL. The agencies said OK, but only if the requester could “identify a specific incident of alleged misconduct by an on-duty officer involving a member of the public,” including the names of everyone involved, according to The Coloradoan in Fort Collins. If a reporter had all that information, there might not be a reason to ask for it.)

Beacon Fire Department

The department sent a single document from 2005, which was beyond the scope of my request but appreciated. A two-page settlement agreement cited a firefighter for failing to complete proper incident reports. “You are hereby reprimanded that your conduct was inappropriate and will not be tolerated in the future,” it read. “You are expected to follow orders and carry out your duties in a competent and professional manner.”

Beacon Police Department

Mayor Lee Kyriacou has vowed to put disciplinary records online. The city told me that it needs until at least Dec. 7 to pull them together “due to the voluminous nature of your request and the complexity/time-consuming nature of the review of such records to determine if they must be withheld, produced or redacted.”

Village of Cold Spring

On June 19, the village told me that it was “working with the village attorney to review the request and gather related materials.” I emailed last week for an update.

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