The Blue Wall

In June, with fanfare, Governor Andrew Cuomo signed into law a package of police reforms. One piece of legislation in the package, called “historic” by many observers, completed the repeal of Section 50-a of New York State’s Civil Rights Law. Section 50-a had provided an exception to the state’s Freedom of Information Law, blocking access by the public to personnel records for police and correction officers that are “used to evaluate performance toward continued employment or promotion.” That included disciplinary and misconduct records.

The move was hailed as a breakthrough. The Innocence Project, for example, a group that works to exonerate wrongly convicted men and women, said: “These disciplinary records will now be publicly disclosed, increasing systemic accountability through transparency and taking New York one step forward to addressing police violence in our communities.”

In practice, though, this historic “one step forward” has been a stumble.

The Express News Group recently filed FOIL requests with every town and village police department on the South Fork, including State Police, seeking personnel, misconduct and disciplinary records and civilian complaints since the start of 2017. The request was broad, as the goal — and, frankly, the expectation — was not actually getting those records. It was to test the “historic” change wrought by the repeal of Section 50-a in the real world.

Not a single department took a decisive step toward complying. Some stalled for time, as the FOIL allows, but others marked the path all will take in the end: no access until the courts sort through the tangle of legal issues that enmesh what the governor pitched as a fait accompli. It is, in reality, far from settled — and very complicated.

The repeal was designed to make records accessible so that police departments could no longer shield bad police officers from public scrutiny. Those “few bad apples” often are allowed to stay on the force after a valid complaint, or to switch departments, enabling bad policing.

But police unions were ready for the repeal of 50-a. The NYPD unions challenged FOIL requests, arguing that disciplinary actions that were resolved through settlements between officers and their employers must remain confidential, as per the settlement agreements.

Meanwhile, civilian complaints that did not result in discipline are considered by the departments to be “unfounded” — and they say they can’t release unfounded complaints, because it would be an “unwarranted invasion of personal privacy.”

So if you are not guilty, you get confidentiality. And if you are guilty, you get confidentiality. If the police say a complaint was unfounded, we must take them at their word. And if the police agree the complaint was true and discipline was warranted? You still don’t get to know about it.

So much for “accountability” and “transparency.”

Most of the local departments are deferring FOIL requests until the courts sort this out. That could drag out for years and may have to be decided by the Supreme Court. It would be nice to think that the State Legislature and governor could resolve this issue so easily. But it’s going to take some more heavy lifting.

That task is even more important now, since Albany took it upon itself to attack the “Blue Wall of Silence” — and it’s barely been dented. It stands as testimony to the need for real, substantive police reform. And every day that wall stands, it mocks those who believe we, the people, have a right to see what’s behind it.