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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2442
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.
STATE OF NEW YORK
________________________________________________________________________
2442
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.
LBD04836-01-3
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.
