The New York State Legislature’s repeal in June of “section 50-a,” a part of the Civil Rights Law that permitted police agencies to refuse to release police misconduct records, was supposed to allow members of the press and the public to access such records through a Freedom of Information Law request. In practice, those records are not forthcoming.
The Express News Group — publisher of The Southampton Press, The East Hampton Press and The Sag Harbor Express — recently filed FOIL requests seeking police personnel, misconduct and disciplinary records and civilian complaints from every South Fork police department from January 1, 2017, onward. The requests were as much to test compliance with 50-a repeal and the Freedom of Information Law as they were to identify newsworthy incidents of police misconduct that were previously confidential.
Under the Freedom of Information Law, government agencies — including police departments — have five days to acknowledge a FOIL request and 20 days from acknowledgment to release records or deny the request, in whole or in part. Some agencies replied to The Express News Group’s records request simply stating that a decision would be made in that time frame. Others said more time was necessary because of the volume of requests it receives or the time it would take to search for such records. Still others denied the request outright citing pending litigation in which a judge temporarily blocked the release of police disciplinary records. The July federal ruling bars release of records until New York City Police Department unions challenging 50-a repeal can make their case on August 18. The unions are seeking to make the injunction permanent.
The Express News Group emailed FOIL requests to every police agency — or its corresponding municipality — on the South Fork, including the New York State Police Troop L, which has a barracks in Riverside.
At least one village is leaning toward not releasing complaints against police officers if the complaints were deemed to be unsubstantiated, while also not releasing substantiated complaints that led to a settlement. Under those conditions, virtually 100 percent of complaints will remain confidential, as nearly all disciplinary actions against police officers end in settlement, such as agreeing to docked vacation days in exchange for not being disciplined more severely or fired.
East Hampton Village Administrator Rebecca Hansen wrote “the Village will not be disclosing any records which were resolved through settlements at this time.” Ms. Hansen cited ongoing court cases in which preliminary rulings barred disclosing such records. As for records related to complaints against police officers that were “unsubstantiated or unfounded,” she wrote that the village will not disclose these “based upon Section 87(2)(b) of the New York State Public Officers Law, which authorizes an agency to withhold records where the disclosure would constitute an unwarranted invasion of personal privacy.”
That leaves disciplinary records and complaints that were substantiated but not subject to a settlement.
“A review of all other available files indicates that there are no other records which satisfy your request,” Ms. Hansen wrote.
However, Ms. Hansen added that the FOIL request will be reevaluated when the litigation is concluded.
Similarly, Southampton Town cited privacy and “unsubstantiated and unfounded complaints.” Assistant Town Attorney Kara Bak wrote in an emailed letter Tuesday that a section of the Freedom of Information Law permits the town to withhold records to the extent that disclosure would constitute an unwarranted invasion of privacy.
“The New York State Committee on Open Government has long held that § 87(2)(b) protects from disclosure charges and allegations which ‘have not yet been determined or did not result in disciplinary action,’” the letter states.
Ms. Bak said that, additionally, at least two courts have enjoined such disclosures of unsubstantiated complaints: the U.S. District Court for the Southern District of New York and Erie County Supreme Court.
Ms. Bak also said the town, at this time, will not be disclosing records that were resolved by settlements, pending the outcome of litigation on the matter.
“The outcome of these matters will likely be instructive for public employers of police or fire personnel throughout the state,” the letter continues. “Upon the conclusion of the litigation, your request may be reevaluated and if additional records are available that are not deemed exempt from disclosure, they will be provided to you.”
New York State Police wrote that due to “the volume of requests received and currently being processed by this agency,” a response will be sent by September 25.
Southampton Village Police Department’s records access officer, Lieutenant Chris Wetter, did not acknowledge receipt of the FOIL request within the five-day time frame required under FOIL, so a second request was made to Southampton Village Administrator Russell Kratoville, who said Tuesday that a reply would come soon.
Sag Harbor Village Police Chief Austin J. McGuire replied within a day, but said, “At the advice of counsel, we are going to hold off on releasing any information due to current pending litigation on this topic.”
East Hampton Town Clerk Carole A. Brennan acknowledged the FOIL request that was made of the East Hampton Town Police Department and wrote that a decision will be made within 20 days.
Quogue Village Police Chief Christopher Isola wrote: “Due to the volume of records that must be reviewed prior to disclosure and the pendency of litigation regarding this subject, the Village is unable to determine which records, if any, can be lawfully disclosed at this time.”
Chief Isola added that the records are expected to be available within 20 days of the litigation’s disposition.
Westhampton Beach Village Clerk Elizabeth Lindtvit wrote that the request cannot be fulfilled or denied within 20 days because “there are numerous boxes filed in storage that need to be retrieved,” and an answer will instead come by January 1, 2021.