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A02442 Summary:

COSPNSRDavila, Kelles, Simon, Epstein, Simone, Hevesi, Raga, Shrestha, Gallagher, Mamdani, Forrest
Amd §§87 & 89, Pub Off L
Requires the disclosure of certain information when an agency responds to a request for law enforcement disciplinary records, including information a victim alleges regarding sexual misconduct.
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A02442 Actions:

01/26/2023referred to governmental operations
01/03/2024referred to governmental operations
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A02442 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Gonzalez-Rojas
  TITLE OF BILL: An act to amend the public officers law, in relation to the disclosure of law enforcement officer's disciplinary records   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this legislation is to clarify the full scope of § 50-a's repeal.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends section 87 of the public officers' law by adding a new subdivision, 4-c, which further clarifies situations in which a request for records cannot be denied. Section 2 amends section 89 subdivision 2-b of the public officers' law to add safeguards for survivors of police sexual harassment and miscon- duct. Section 3 is the effective date.   JUSTIFICATION: In June 2020, while New Yorkers joined nationwide protests following the police killings of George Floyd, Breonna Taylor, and too many others, the New York Legislature responded by advancing a major legislative package to increase police transparency and accountability. Central to that package was a bill to repeal New York Civil Rights Law Section 50-a. For years, § 50-a had rendered secret all records concerning police misconduct complaints, investigations, and disciplinary outcomes. Section 50-a stood in direct contrast to the public policy goals of the Freedom of Information Law, which are to make government agencies and their employees accountable to the public, and the law made it impossi- ble to determine whether police departments were doing all they could to thoroughly investigate and respond to potential abuses. The legislation to repeal § 50-a was clear; it defined a new category of law enforcement disciplinary records that were now available for public view. The amendments to FOIL provided clearly defined, narrow exceptions for the types of information that could still be withheld, but the plain text of the legislation and the extensive floor debate made clear that the measure was intended to make the overwhelming majority of such records accessible. Unfortunately, many law enforcement agencies are continuing to withhold vast amounts of disciplinary records. Many police departments are refus- ing to disclose records related to "unsubstantiated" misconduct complaints, claiming that they remain confidential. Others are refusing to disclose records that were created prior to June 2020 or are claiming that other, irrelevant FOIL exemptions apply. There has already been extensive litigation concerning these refusals, resulting in a patchwork of conflicting rulings, including some that have incorrectly held that the legislature intended for many of these records to remain secret. The fact that the legislature intended to make unsubstantiated records available and to sharply curtail the permissible exemptions for law enforcement disciplinary records was discussed at length. It was cited by both supporters of the bill and opponents, who while disagreeing on the merits of the proposal, agreed on its intended outcome to open up these very records to public scrutiny. This bill reaffirms and clarifies the full scope of § 50-a's repeal. It explicitly states that law enforcement agencies cannot continue to with- hold these records beyond the narrow categories defined in the earlier repeal legislation, and it will provide courts with an unambiguous declaration of the legislature's intent with respect to such records. Finally, this bill adds safeguards for survivors of police sexual harassment and misconduct. Current law does not provide sufficient guar- antees to protect the identities of these survivors, and there is a real concern that survivors could face retaliation or be reluctant to come forward with complaints in the first place if they fear that their iden- tities will be exposed in subsequent FOIL productions. This bill will ensure that police sexual misconduct survivors' identities remain confi- dential, while still allowing for release of the underlying misconduct and disciplinary information that the public has a strong interest in reviewing.   PRIOR LEGISLATIVE HISTORY: 2022: A9050 reported to governmental operations committee   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect immediately.
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A02442 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    January 26, 2023
        Introduced by M. of A. GONZALEZ-ROJAS, DAVILA, KELLES, SIMON, EPSTEIN --
          read once and referred to the Committee on Governmental Operations
        AN  ACT  to amend the public officers law, in relation to the disclosure
          of law enforcement officer's disciplinary records
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. Section 87 of the public officers law is amended by adding
     2  a new subdivision 4-c to read as follows:
     3    4-c. An agency responding to a request for law  enforcement  discipli-
     4  nary  records as defined in section eighty-six of this article shall not
     5  deny access to such records or portions thereof on the grounds that such
     6  records:
     7    (a)  constitute  an  unwarranted  invasion  of  personal  privacy   as
     8  described  in  paragraph  (b) of subdivision two of this section because
     9  such records concern complaints, allegations, or charges that  have  not
    10  yet  been determined, did not result in disciplinary action, or resulted
    11  in a disposition or finding other than substantiated or guilty;
    12    (b) are compiled for law enforcement purposes as  described  in  para-
    13  graph (e) of subdivision two of this section;
    14    (c)  are  inter-agency or intra-agency materials as described in para-
    15  graph (g) of subdivision two of this section;
    16    (d) are or were  designated  as  confidential,  secret,  or  otherwise
    17  private  by  a private agreement, including but not limited to a settle-
    18  ment, stipulation, contract, or collective bargaining agreement; or
    19    (e) were created prior to the effective date of this subdivision.
    20    § 2.  Paragraphs (c) and (d) of subdivision 2-b of section 89  of  the
    21  public  officers  law,  as  added by chapter 96 of the laws of 2020, are
    22  amended and a new paragraph (e) is added to read as follows:
    23    (c) any social security numbers; [or]
    24    (d) disclosure of the use of an employee  assistance  program,  mental
    25  health  service,  or  substance  abuse  assistance  service  by a person
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 2442                             2
     1  employed by a law enforcement agency as defined in section eighty-six of
     2  this article as a police  officer,  peace  officer,  or  firefighter  or
     3  firefighter/paramedic,  unless such use is mandated by a law enforcement
     4  disciplinary proceeding that may otherwise be disclosed pursuant to this
     5  article[.]; or
     6    (e)  the  name  or  other personal identifying information of a person
     7  included in a law enforcement disciplinary record, where that person  is
     8  alleged  to  have been the victim of sexual misconduct. For the purposes
     9  of this section, the term "sexual misconduct" encompasses misconduct  of
    10  a  sexual nature or motivated in whole or in part by the person's actual
    11  or perceived gender or gender presentation alleged by a person against a
    12  member of a law enforcement agency. Sexual misconduct includes,  but  is
    13  not  limited  to, the following examples of misconduct: verbal, digital,
    14  and written sexual harassment; sexual harassment using physical gestures
    15  and expressions; sexual humiliation; sexual intimidation  and  coercion;
    16  taking  unwarranted photographs or videos or voyeuristic actions; use of
    17  personal information, including telephone numbers, obtained  from  indi-
    18  viduals  in the course of duty for other than legitimate purposes; sexu-
    19  ally motivated police actions such as  stops,  summonses,  searches,  or
    20  arrests;  sexual  or  romantic  propositions; and any intentional bodily
    21  contact of a sexual nature, including but not limited to, groping, sexu-
    22  al assault, rape, and engaging in sexual activity while on duty.
    23    § 3. This act shall take effect immediately.
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