Legal Aid Society, Cleary Gottlieb Continue Push for City to Disclose NYPD Disciplinary Summaries
FRIDAY, OCTOBER 06, 2017

The Legal Aid Society and Clearly Gottlieb Steen & Hamilton LLP reaffirmed their push today for the City to improve police accountability and transparency by filing an appeal against the New York City Police Department (NYPD) in Luongo v. NYPD Records Access Officer. Legal Aid also filed a motion for leave to appeal in a separate petition against the Civilian Complaint Review Board (CCRB) and NYPD Officer Daniel Pantaleo.

“For over 40 years, these summaries were disclosed to the public with zero hesitation. The City’s reversal in favor of secrecy by manipulating an outmoded law counters any relationship the NYPD is trying to build with the blocks it polices,” said Tina Luongo, Attorney-In-Charge of the Criminal Practice at The Legal Aid Society. “So long as acts of police brutality continue to proliferate in black and brown neighborhoods, proof that the NYPD’s accountability system responds remains critical if we’re going to have true transparency and accountability.”

“When the legislature decided to protect personnel records, it limited that protection to records that are actually used in evaluating police officers,” said Roger Cooper, a partner at Cleary Gottlieb Steen & Hamilton LLP. “After publishing these personnel orders for 40 years, the NYPD now seeks to expand Section 50-a to cover records that have never been used to evaluate police officers.”

 

Luongo v. NYPD Records Access Officer

Legal Aid and Cleary Gottlieb appealed a June decision on Luongo v. NYPD Records Access Officer concerning the summaries of NYPD disciplinary adjudications previously made public by the Deputy Commissioner of Public Information for 42 years.

Background

The Legal Aid Society and Cleary Gottlieb Steen & Hamilton LLP filed a petition on December 6, 2016 demanding the NYPD return to a practice it has followed for decades.

In May 2016, The Legal Aid Society submitted a Freedom of Information Law (FOIL) request for the "Personnel Orders" to the NYPD, citing the already public nature of the materials. The NYPD denied the request and then informed The Legal Aid Society that it would not only deny its FOIL request, but that it also would no longer be making the summaries available to the media.

Subsequently, Mayor Bill de Blasio announced that while he was in favor of releasing the materials as a policy matter, he believed a provision of state law, Civil Rights Law 50-a, prohibited him from doing so. Governor Andrew Cuomo publicly disagreed, stating that releasing the records is a decision for New York City. Though Civil Rights Law 50-a shields certain individual officers’ personnel records from public disclosure, the City's current interpretation of the law is overly broad and inconsistent with over 40 years of practice.

Legal Aid and Cleary Gottlieb argued that the NYPD is required to release this information—which is of substantial public interest—and is not within the scope of Civil Rights Law 50-a. In early June, Judge Joan Lobis decided that these records fall under the scope of 50-a. Today’s filing is appealing that decision.

Details on appeal

The appeal argues that the court erred when it found that the records at issue were used to evaluate officer performance, a position neither side argued. Further, the court erred in finding that the records had a realistic potential of misuse against police officers. Finally, the lower court should have remanded the decision to the NYPD with instructions that 50-a is permissive, not mandatory, and that the NYPD was free to fulfill FOIL requests in its discretion.

 

Luongo v. CCRB Records Access Officer and Officer Daniel Pantaleo

Legal Aid filed a motion for leave to appeal in Luongo v. CCRB Records Access Officer and Officer Daniel Pantaleo. If granted, this will allow the Legal Aid to move forward with their appeal in the Court of Appeals.

Background

The Legal Aid Society filed a lawsuit in 2015 for the release of NYPD Officer Daniel Pantaleo’s disciplinary record. On July 17, 2015, the Court held that the summary requested was not a “personnel record” under the definition of Civil Rights Law 50-a. The City appealed and the New York Appellate Division First Department’s reversed the lower court’s ruling. If the motion of leave to appeal is granted, this will allow Legal Aid to move forward with an appeal.

Motion for leave to appeal details

The motion for leave to appeal argues that the CCRB, a civilian agency that is independent of the NYPD, is not a “police agency or department” within the meaning of 50-a and therefore its records are not exempt from production in response to an otherwise valid FOIL request.

The motion also argues against anticipated defenses of alleged mootness. In March, an unidentified whistle blower leaked Officer Pantaleo’s CCRB “Officer History” to the media. Generally, the Court is precluded from “from considering questions which, although once live, have become moot by … change in circumstances.” However, Legal Aid argues that the important issues presented in this motion are likely to be repeated but also often fail to be fully litigated and therefore warrant review by the Court of Appeals.