Our country is in turmoil after the fatal arrest of George Floyd in Minneapolis, MN.  Protests after the killing have been disrupted by individuals turning to violence and looting, putting first responders and business owners at risk, as well as troubling actions by police responding to protests also with violence or suppression of the press.

These are difficult conversations to have because, while we all condemn looting and violence, we also don't want outrage about that to eclipse our need to take a hard look at racism and police violence against black people.  We all support the good cops out there, but we also can't have this conversation without confronting the fact that, not only are there “bad apples”, but bystanders who contribute to a culture of not holding those bad apples accountable.

No one has all the answers and some of us are taking the time to really think about these issues in a nuanced way for the first time.  This article is about one action some advocates believe can lead to practical change: the repeal of New York Civil Rights Law 50-a. The death of George Floyd has reignited a long standing debate over this statute, and Governor Cuomo has indicated he would sign legislation reforming the law.

Civil Rights Law 50-a is the statute that protects the release of police, firefighter and correction officer personnel records. You can read the full text here. In relevant part, the statute states that such personnel records “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 department of corrections and community supervision or probation department except as may be mandated by lawful court order.” 

In the context of addressing police brutality, practically, this statute means that members of the public, journalists, advocacy groups and litigants aren't allowed to access police disciplinary records like you are typically permitted to access government records under FOIL or through discovery in litigation.  The NYCLU lost a big case against the NYPD at the Court of Appeals (New York's highest court) back in 2018, when the Court of Appeals held that complaints that had gone through the Civilian Complaint Review Board were privileged under Section 50-a. 

Why is this a problem? Well, just like nondisclosure agreements in the sexual harassment context, how are we supposed to know who the “bad apples” are if they haven't been fired and we aren't allowed to access their records?  And when police departments tell us they are taking complaints seriously or taking action against bad cops, how do we know that's true if we can't access the results of disciplinary proceedings?

Public officers have legitimate concerns about safety and privacy, and we don't pretend to have all the answers as to how to balance these concerns with our need for transparency so that we can fix problems in the system.  Our experience with Civil Rights Law 50-a is in the civil rights and employment litigation context, so that's what we're talking about here.  And, in that context, we argue that these records should be accessible and treated like any other relevant information sought in the discovery process.  There is always room for a court to make a protective order to preserve privacy and confidentiality, as well as to be sure that only information relevant to the litigation is disclosed.

This is how we have seen things play out:  We sue a city or county for a civil rights violation or employment discrimination.  In discovery, we request disciplinary records of an alleged wrongdoer to establish a pattern of bad behavior and the employer's knowledge of such behavior.  The defendant then objects to producing those records based on Civil Rights Law 50-a. 

However, a civil rights case often implicates both your federal and your state rights, and we litigate civil rights and employment cases primarily in federal court.  Typically, a state statute cannot be used to deprive you of your federal rights.  So, federal case law does not apply Civil Rights Law 50-a to deprive a plaintiff of access to a public officer's relevant disciplinary records, and we have successfully made that argument in opposition to a defendant's Section 50-a objection in both civil rights and employment discrimination cases.

Speaking of employment cases, we would argue that this law has unintended consequences in discrimination cases to the detriment of employees making complaints against their fellow officers or firefighters.  In a sexual harassment lawsuit against a private employer, you would be entitled to see prior sexual harassment complaints against a coworker or superior.  In a discrimination case against a private employer, you also would be entitled to see disciplinary records of employees who you claim were treated better than you.  But, when we're in the police/fire/corrections officer context, disciplinary records now implicate Section 50-a

This happened in one of our cases involving sex and disability discrimination against a city.  In that case, the city alleged that our client was passed over for promotions because of poor performance and not because of her sex.  Our argument was that the city had promoted men with serious disciplinary issues whereas our client had none.  Therefore, their claim didn't hold up.  How would we prove our point? With the disciplinary records of the men who had been promoted.  But the department objected to releasing those records based on Civil Rights Law 50-a because they were firefighters. Here, however, our case was in federal court and we alleged violations of the relevant federal employment discrimination statutes.  So, the court refused to apply Section 50-a and the defendant was ordered to provide us with the records.

You may be thinking, if federal courts won't apply Section 50-a, what's the big deal?  Well, we would argue that New York prides itself on being more protective of its citizens than the federal law.  The New York State Human Rights Law protects more categories of employees from discrimination than Title VII (such as sexual orientation and gender identity), and the state Constitution can also be interpreted more broadly in certain contexts.  So, it is not beyond the realm of possibility that a litigant may only have protection under the state law, and then be harmed by the application of Section 50-a. (The federal courts also wouldn't help outside of litigation like the NYCLU case mentioned above).

We believe that protests have value, but we also know that societal change needs to be reflected in the law as well.  (In the sexual harassment context, there are cases on the books that don't match up with what we now know and recognize as unacceptable behavior.  In the sexual orientation context, as a society we know that discrimination is wrong, but the Supreme Court still hasn't decided whether it's covered by Title VII.).  We can try to effect this change not only through lawsuits and shaping the case law, but by revisiting statutes like Civil Rights Law 50-a and remedying any unintended consequences.