A New York state senator blasted MuckRock’s latest transparency project to access police disciplinary records, calling it an “unintended consequence” of recent legislation designed to allow access to police disciplinary records.
“At a time when localities are struggling to meet their regular expenses because of the crushing impact that COVID-19 has had on their budgets, it is outrageous that they will now be required to devote precious staff time and taxpayer dollars towards searching, copying, faxing and emailing decades-old personnel files containing groundless claims, even those where the officers involved have been deceased for decades,” New York State Sen. George Borrello said in a Monday morning press release after becoming aware of a FOIL request sent by MuckRock to the Town of Cuba, NY, along with every other police department in the states.
The town itself, however, said it was continuing to process the request without problem. Cuba Police Department Chief Dustin Burch said the department had mailed an acknowledgment letter (certified) and was working on preparing the records for release.
Press liaison Lisa Hall noted that Borrello had not coordinated with the Cuba Police Department on his release but reiterated that he has been “opposed to the appeal from the get-go” because of the inclusion of unsubstantiated complaints. “The fact that they are included just adds to the burden of localities,” Hall said.
The effort to collect and review that information, Borello hypothesized, could disrupt services to the public during the pandemic and could unfairly tarnish police officers’ reputations.
Until two weeks ago, records of actual and alleged misconduct by law enforcement, firefighters, and correctional officers had spent more than four decades restricted from public disclosure by Section 50-a of the state’s Civil Rights Law. In the last five years, more agencies have used the exemption when responding to requests under FOIL, citing the statute when denying access to disciplinary reports, officer complaints, and the personnel file of Daniel Pantaleo, the officer who killed Eric Garner.
A nationwide movement of anti-racist, pro-police accountability actions helped pass a repeal of Section 50-a this month in the New York legislature, where Borrello voted against the measure that ultimately cleared the State Senate 40-22. Advocates for victims of police brutality and for government accountability cheered the change, which now leaves Delaware the only state to provide such broad protection of police personnel records. Opponents, like the Police Benevolent Association, remain adamant that the release of these records will foster violence against police rather than improved trust between cops and communities.
In the days following Gov. Andrew Cuomo’s signature, MuckRock, working with the Brechner Institute for Freedom of Information and Attorney Cory Morris, began to send FOIL requests to each law enforcement agency in the state. The requests cover all disciplinary records since 1970.
All materials and records describing and sufficient to show/disclose all allegations of misconduct made and all disciplinary proceedings taken against any officer, employee, or representative of this policing agency.
As described in the New York Freedom of Information Law, a record is “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.” Records kept in a digital or electronic form are also records, would be responsive to this request, and should be provided.
These records are typically required to be retained under the New York State Records Retention and Disposition Schedule MU-1 (http://www.archives.nysed.gov/records/retention_mu-1), including, but not limited to, item no. 365, which includes: “Investigative records and disciplinary proceedings, including but not limited to statement of charge, transcript of hearing, notice of decision, letter of termination or resignation, letter of reinstatement, record of appeal procedure, and correspondence.” While materials under that schedule have a set retention of 3 years after the final decision rendered, this request and materials responsive to it include all records held in the possession of any office or individual employed or formerly employed by this policing agency, including those kept off-site, in digital form, and in personnel files.
Please note that any failure to provide all potentially-responsive materials and/or the destruction of materials potentially responsive to this request would be a violation of the spirit of the New York Freedom of Information Law, as well as unlawful under the New York FOIL and the terms of the attached litigation hold notice.
Those requests were filed publicly through the MuckRock platform, which allows members of the public to “Follow” along with the public records process and ultimately access a digital version of any document released as the result of a request.
According to New York law, agencies are required to respond to FOIL requests within five business days. Our first response, received three days after we sent our request, arrived from the Allegany Village Police Department, which serves a population of less than 2,000 people.
MuckRock submitted the requests with the understanding that multiple factors — the newness of the law, the archaicness of government records systems, the variance in staffing and resources, our data-informed expectation that many requests will not be answered in compliance with statutory requirements — would make it likely that it will take many phone calls, negotiations, and months to receive many of these records.
As the five-day mark expires on most of the police department requests, more than half of the 424 requests remain unacknowledged, including, at the moment, the request to Cuba Police Department.
You can follow along for the process by visiting the request pages for the New York police department of your choice and selecting “Follow” while logged in with a free MuckRock account.