Law Lets New York Cops Keep Their Misconduct Secret

In New York State, personnel records for cops, firefighters and corrections officers are protected by a privacy law, even when those records reveal misconduct and are of concern to the public. Peter Schmitt, the presiding officer of the Nassau County Legislature, ran afoul of that law when he revealed important details of a case that resulted in a large settlement after police screw-ups allowed one of their informants to first harass, and then murder, his ex-girlfriend. While the judge in the case is holding off on a decision, Schmitt could be fined and even jailed for telling taxpayers about mistakes made by public employees that are costing taxpayers $7.7 million dollars.

According to news reports about the information Schmitt revealed:

The testimony came from the former head of the police department's internal affairs unit, who investigated police procedures in the case of Jo'Anna Bird. She was murdered in 2009 by her former boyfriend. Her family later claimed that police failed to arrest the man later convicted of the murders when he violated orders of protection on several occasions before the killing.

The killer, Leonardo Valdez-Cruz, was reportedly a drug informant for the police. He is serving life without parole.

After voting in January to approve the payment, Schmitt told Long Island cable TV station News12 that police had provided Cruz with a cellphone while he was in jail on a prior unrelated arrest. Cruz, according to Schmitt, made 35-40 harassing telephone calls to Bird from his jail cell.

Newsday adds that "Valdez-Cruz, who was a police informant, is now serving life in prison for torturing and killing the mother of two."

All of this is horrifying in itself, and it's a matter of public concern both because of the conduct of police officers employed to protect the public, and because Nassau County ended up paying out $7.7 million in taxpayer money to Bird's family to settle the case. Which would seem to be good reason for Peter Schmitt, the top lawmaker in the county and the guy who signed the settlement, to chat with a television news crew about a report revealing what his constituents were paying for.

But, in New York, § 50-a of the state Civil Rights Law, discourages that sort of transparency. Under the law:

All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the division of parole for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the division of parole except as may be mandated by lawful court order.

And, since the information Schmitt revealed was sealed pursuant to a reading of the law even broader than the law itself, he found himself, because of his role as a county official, facing a contempt charge.

Why such a restrictive law? Well, the New York Court of Appeals held in Capital Newspapers v. Burns that the law "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination." In Prisoners' Legal Services v. NYS Department of Correctional Services the court elaborated that the intent "was to prevent the release of sensitive personnel records that could be used in litigation for purposes of harassing or embarrassing correction officers."

However do other states get by without similar legislation? Oh … That's right. Judges have the power to limit what gets presented in their courtrooms, and to screen out anything irrelevant.

And if it's not irrelevant? Well, being embarrassed is part of the price of screwing up, isn't it? You do something wrong, it gets exposed, and …

That's the point made by Newsday, which editorialized:

It's not Schmitt's candor that is contemptible. It's the sealing of that report in a misguided ruling by U.S. Magistrate Kathleen Thomlinson, handling the case for U.S. District Court Judge Arthur Spatt, and the court's failure to see the critical public service that would have been performed by making the report public.

The newspaper goes on to list several other cases of serious police misbehavior, the details of which have been hidden from the public behind the wall of the law known as 50-a.

Newsday has good company in its contempt for the "privacy" law. In 2010, New York's Committee on Open Government warned (PDF) that under 50-a, "those public employees who have the most power over our lives are the least accountable. If a police officer, a correction officer or a professional firefighter has broken the rules, the public should have the right to know." The committee also said, "that law should never have been enacted, and it should be repealed."

The law is still there. And it still conceals police misconduct from the eyes of the public.