March 11, 2020

New York State Senator Jamaal Bailey

Legislative Office Building Room 609 LOB
Albany, New York 12247

New York State Assemblymember Daniel J. O'Donnell

Legislative Office Building Room 712
Albany, New York 12247

Dear Senator Bailey and Assemblymember O’Donnell:

I am Chair of the New York City Civilian Complaint Review Board (CCRB) and write, with the
support of the below-named CCRB Board members, to address the repeal of Civil Rights Law
(CRL) § 50-a, which protects the disclosure of “personnel records” of police officers, firefighters,
and corrections officers, among others.

When it was enacted in 1976, the statute “was designed to limit access to [ ] personnel records by
criminal defense counsel, who used the contents of the records, including unsubstantiated and
irrelevant complaints against officers, to embarrass officers during cross-examination.” 1 Since
then, however, the protections of CRL § 50-a have been applied beyond the scope of litigation,
including records relating to complaints and proceedings against police officers and summaries of
police officer disciplinary histories kept by the CCRB. Thus, agencies like the CCRB that hold
records falling within CRL § 50-a are required to keep those records secret.

Legislation put forth by yourself and Assembly Member Daniel O’Donnell (S. 3695/A/2513)
proposes a full repeal of CRL § 50-a. I testified at the October 24, 2019, hearing by the Senate
Standing Committee on Codes and voiced my personal opinion that CRL § 50-a should be
repealed. The majority of the other submissions at the hearings also supported repeal, with many
citing the need for transparency, public awareness and accountability, improvement of police-
community relations and public trust, better access to potentially exculpatory evidence in criminal
cases, disproportionate impact on minority and marginalized communities, and the continued
expansion of the scope of the statute by the courts and government agencies as key factors in the
push for legislative action.

Opposition to repeal or reform came only from unions or entities representing law enforcement
officers. All cited officer safety as the main reason for opposition, along with the purported
sufficiency of the current disclosure provisions written into CRL § 50-a. However, the Court of
Appeals has limited the disclosure of records pursuant to CRL § 50-a to the confines of on-going
litigation. This limitation forecloses the opportunity for disclosure to those who are not involved
in a pending court case. A complainant in a CCRB case who is not taking legal action and merely
wants to know the outcome of his or her CCRB complaint could not exercise this option.

1
Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 568 (1986) (quoting Carpenter v. City of
Plattsburgh, 105 A.D.2d 295, 298 (3d Dept.), aff’d for reasons stated below 66 N.Y.2d 791 (1985)).
Likewise, family members of an individual killed as a result of law enforcement action are also
denied access to information about the officer(s) involved in the death of their loved one. Gwen
Carr, the mother of Eric Garner, Constance Malcolm, the mother of Ramarley Graham, Valerie
Bell, the mother of Sean Bell, Victoria Davis, the sister of Delrawn Small, all testified at the Senate
Hearing about the difficulties they and their families faced obtaining information about the death
of their family member. Some had to bring lawsuits and rely on press accounts and leaked records
just to obtain basic information about the officers. They also noted that the obstacles presented by
CRL § 50-a make it hard for families to seek justice because they often lack information to make
sufficient legal claims.

To our knowledge, there is no evidence that officers faced any threats, violence, or harassment in
jurisdictions where public access to officer records is allowed. The Freedom of Information Law
(FOIL) provides exemptions that prevent the disclosure of any information that would constitute
an unwarranted invasion of privacy or would endanger the life and safety of any person. Moreover,
for decades the New York City Police Department (“NYPD”) regularly released summaries of
officer disciplinary proceedings and outcomes without any issue. Providing officer names in
conjunction with the release of disciplinary records would not disclose more information than is
already provided to the public in other contexts—and thus should not pose any additional threat to
officer safety.

The NYPD’s Position

Recognizing that “[a]s currently constituted, the stringent requirements of Civil Rights Law 50-a
breeds mistrust and a belief that the few officers who betray the public trust are never held
accountable by the Police Department,”2 the NYPD supports amending the statute to allow the
release of a limited category of records to the public. 3 This would permit “the release of the
complaint, allegations or charges, the transcript of the hearing, any written opinion, and final
disposition and penalty at the conclusion of a discipline process for serious police misconduct” in
substantiated cases only.4 This means, however, that there would be no release of information in
cases where the allegations were unsubstantiated, exonerated or unfounded, regardless of the
seriousness of the allegations. Moreover, because the majority of CCRB complaints are not
substantiated, the NYPD position makes no provision for individual civilians to obtain detailed
information about their own complaints against police officers if the allegations are not
substantiated.

The NYPD also does not define what constitutes “serious police misconduct.” A wide range of
misconduct could fall between “serious police misconduct” and minor administrative infractions
like an officer “misplacing an identification card or failing to shine his or her shoes”5—the latter
of which no one has expressed any desire in having disclosed to the public. This approach could
potentially limit the information that the CCRB would be able to disseminate to the public if
allegations falling within its force, abuse of authority, discourtesy, offensive language, and false
material statement jurisdiction are not considered “serious.”

2
Statement of Oleg Chernyavsky, Assistant Deputy Commissioner, Legal Matters, New York City Police
Department, New York State Senate Standing Committee on Codes, October 24, 2019.
3
A three-member Blue Ribbon Commission recommended that the NYPD support reform of CRL § 50-a in order to
improve transparency and public trust and confidence in the disciplinary system.
4
Statement of Oleg Chernyavsky, supra.
5
Id.
CRL § 50-a’s Impact on CCRB Complainants

Typically, in response to a FOIL request to the CCRB, a complainant will only receive a copy of
the audio recording of their statement to the CCRB, redacted memo books and arrest records
related to their case, any evidence that was provided to the CCRB by the complainant, any
communications between the civilian and the CCRB, and a copy of the disposition letter, which
reflects the CCRB’s finding on each of the allegations in the case. Oftentimes, civilians are
confused as to why an allegation is unsubstantiated, exonerated, or unfounded by the CCRB, but
due to CRL § 50-a, the CCRB cannot provide any explanation to the complainant on how it reached
its conclusion.

At monthly CCRB Board meetings and outreach events, members of the public often comment on
the importance of transparency and accountability and how vital it is for them to obtain information
about the disciplinary histories of the officers who patrol their communities. At the CCRB’s
November 2019 Board meeting, members of the public spoke specifically about the need for the
repeal of CRL § 50-a and some noted that the results of the recent election—which granted the
CCRB additional powers under its Charter—was a signal from the public that it wanted the CCRB
to advocate more strongly on their behalf, including supporting changes to CRL § 50-a. Every
person who spoke was in favor of repeal.

Access to Police Records in Other Jurisdictions

New York and Delaware are outliers, having the most restrictive police personnel record disclosure
statutes in the country. According to a 2015 WNYC study, police misconduct records are generally
considered confidential in 23 states6 (California was included in those 23 states, but has since
changed its laws to allow for more disclosure). In most of these states and the District of Columbia,
records largely cannot be obtained through a public records request.7

The public has limited access to police disciplinary records in 15 states.8 In those states, records
are available in certain situations, such as where the discipline is severe.9 Records are generally
available to the public in 12 states across the country.10 Although some of these states only disclose
substantiated misconduct, there are several states (Arizona, Connecticut, Florida, Georgia, North
Dakota, Ohio, Utah, and Washington) that generally disclose records of unsubstantiated,
exonerated or unfounded conduct upon request from the public. There have been no studies
indicating that officer or public safety has been compromised in those states that have more
permissive disclosure rules for police records.
Recommendation

Whereas the current version of CRL § 50-a does not accomplish the CCRB’s commitment to
transparency and accountability, after considering the various positions of stakeholders, we
support a repeal of CRL § 50-a and encourage the New York State Senate and Assembly to adopt
legislation consistent with the priorities set forth below—which would allow the CCRB to release
records in all its cases—and provide additional privacy protections, if needed, under FOIL, to
ensure that private complainant and officer information is kept confidential.

6
https://project.wnyc.org/disciplinary-records/, last visited January 14, 2020.
7
Id.
8
Id.
9
Id.
10
Id.
• Providing the public with more information will increase accountability of police officers who
engage in misconduct, as well as the accountability of the CCRB and NYPD personnel tasked
with investigating and imposing discipline on members of service who have substantiated
allegations of misconduct.
• Increased transparency is central to improving the relationship between the public and the
members of the NYPD. Providing the public with more information about the disciplinary
records of NYPD officers than is currently available will increase transparency and public
confidence in the police oversight provided by the CCRB.
• It is important for public confidence in the investigatory and disciplinary process that the
CCRB be able to explain to the public the outcomes of all CCRB investigations, not just
substantiated investigations. For example, explaining why the CCRB could not reach a finding
on the merits in a case that was unsubstantiated, or why the allegations against an officer were
exonerated because the CCRB’s investigation determined that the officer’s conduct comported
with the law and/or the NYPD Patrol Guide and the officer’s training.
• Civilians who file complaints with the CCRB against members of the NYPD deserve and are
entitled to information about the CCRB’s investigation of their complaint and the findings and
recommendations made by the CCRB in that investigation, and any subsequent prosecution,
regardless of the outcome or the severity of the allegations in the complaint.
• The CCRB is committed to maintaining the confidentiality of sensitive, personal information
about complainants, victims, witnesses, and police officers, and does not support the disclosure
of any information that would compromise the safety of a police officer or any other person,
nor does it want any member of the public to be discouraged from filing a complaint with the
CCRB out of concern that their identity or personal information will be disclosed.

Sincerely,

Frederick Davie, Board Chair

With the support of CCRB Board Members:

Mayoral Designees City Council Designees
John Siegal, Esq. Joseph A. Puma (Manhattan)
Erica Bond, Esq. Marbre Stahly-Butts, Esq. (Brooklyn)
Corrine A. Irish, Esq. Michael Rivadeneyra, Esq. (Bronx)
Nathan N. Joseph (Staten Island)