The Wall Street Journal: Lawyers Argue for Public Access to Police Disciplinary Records

Cynthia Conti-Cook, Staff Attorney in The Legal Aid Society Special Litigation Unit, and Ben Shartsis, an associate at Cleary Gottlieb Steen & Hamilton, tell the Wall Street Journal about the demand for disclosure of NYPD disciplinary records which previous administrations have done for the past 40 years, Oral arguments are being presented today in Manhattan Supreme Court.

Wall Street Journal
Lawyers to Argue for Public Access to Police Discipline
By Zolan Kanno-Youngs
March 20, 2017

Lawyers for the Legal Aid Society will argue on Tuesday that the New York Police Department should resume making the disciplinary information of police officers public.

The NYPD for years made internal documents, called “personnel orders,” public through its press office. The documents were issued anytime an officer had a change in status, including promotions, retirements and discipline.

Department officials stopped making the orders public in March 2016. They cited a state law that said personnel records used to evaluate performance shouldn’t be made public unless there is written consent or a court order.

The NYPD’s interpretation of the law has been criticized by advocates and watchdogs. The Legal Aid sued in December, and the case is being heard Tuesday in Manhattan Supreme Court.

At the heart of the argument is whether the disciplinary information sought by Legal Aid Society are the personnel records described in the law.

Cynthia Conti-Cook, a staff attorney at the Legal Aid Society special litigation unit, said the records are merely summaries of disciplinary proceedings, such as the department’s disciplinary trials, as opposed to thorough investigation files of officers.

“The NYPD has made the decision, the political decision, to no longer want to make this available,” said Ben Shartsis, an associate for Cleary Gottlieb Steen & Hamilton LLP, the firm joining with the Legal Aid Society.

A spokesman for the NYPD said on Monday the claim that the change was a political decision is “patently false.”

In the city’s response to the Legal Aid Society petition, it argued the records “by their nature…carry a potential for embarrassing, harassing or impeaching use.” The documents the Legal Aid Society requested are specific enough to be covered by the state law, according to the city’s response.

The NYPD spokesman referred to previous comments by deputy commissioner of legal affairs Lawrence Byrne, who said the department’s longstanding practice of making the records available was “inadvertent.”

“It’s not a transparency issue,” he said. “This is a strict prohibition that we’re obligated legally to comply with.”

Mayor Bill de Blasio, who ran on improving police and community relations has been criticized for not doing more to disclose the information. However, the mayor has repeatedly called for a change in the state law.

“We’ve identified this broken state statute as a priority for overhaul in the current legislative session to deliver the transparency New Yorkers deserve,” a spokesman for the mayor’s office said in a statement on Monday.

New York Gov. Andrew Cuomo is open to amending the law, his spokeswoman said. “But don’t be fooled by the City’s recent claims of confusion—the law didn’t change, City Hall’s policy did.”

A spokesman for the mayor responded, “the governor believes the city should violate state law and that’s not responsible.”

In recent months, the NYPD said it would work to disclose some disciplinary information.

In January, Constance Malcolm, the mother of an unarmed teenager fatally shot by a police officer in the Bronx, publicly questioned whether she would know the outcome of a disciplinary trial of the officer. Kevin S. Richardson, deputy commissioner who oversees department prosecutions, said that month the family would be informed of a decision.

“At least when we have this information we see what they were disciplined with,” Ms. Malcolm said. “Now we don’t know.”