By Roy S. Gutterman

The shocking epidemic of police brutality, highlighted by recent cases including the George Floyd killing, continues to inspire protests and efforts to reform police activity. Reforms often encompass all branches of government—legislative, administrative and executive, and, of course, the courts. The Fourth Estate, the press, also plays an important role in serving as a check on government power and abuses, particularly in police brutality matters. Opening up public records, specifically police disciplinary reports, misconduct complaints, and other records, has come to the forefront of efforts for police reform. Numerous recent cases of police brutality and police killings of citizens, often people of color, stopped by police, sometimes police with long records of prior abuses, helped incorporate public scrutiny into the public discussion on police abuses. Officers in several high-profile cases had a long paper trail of previous complaints and abuses. Had this information been publicized earlier, the conventional wisdom is that perhaps they might not have been on the job to commit additional crimes under the color of law. Thus, media organizations and individual journalists exercising their First Amendment rights delve into public records and use them as the backbone for disseminating information about important public issues. Police misconduct certainly falls within the ambit of important news coverage. One important outgrowth of these dramatic and life-and-death cases has been legislation intended to open up police misconduct records to public scrutiny, which in some states have been locked behind restrictive and anti-democratic laws aimed at keeping these public records from the people who need them the most: the public. This Article will look at a series of laws and the subsequent legal challenges seeking to unlock police misconduct public records with a particular focus on New York Civil Rights Law section 50-a, which was repealed in January 2020 to lift the blanket shielding release of police disciplinary and misconduct files. The law was initially enacted in the 1970s to prevent criminal defense attorneys from securing law enforcement disciplinary and complaint files to impeach police witnesses. Over the decades, though, the blanket exemption also meant that journalists and media organizations could not employ public records requests to adequately and thoroughly cover police misconduct or other employment matters involving corrections officers, firefighters, and some other government officials who make life-and-death decisions, and those who should be subject to public scrutiny. In addition to recent dramatic and life-and-death cases, a 2018 New York Court of Appeals decision strictly interpreted the statute to uphold withholding law enforcement disciplinary records in a far-reaching public records request. In the short time since the repeal, section 50-a has been the subject of nearly a dozen lawsuits. State trial courts have issued rulings on 50-a litigation in a dozen reported opinions, and in late 2022, two Appellate Division decisions offered the first word on the law from a higher court. In one case, a municipality, the City of Rochester, signaled that it intended to appeal the ruling to the state high court, the Court of Appeals. Following the repeal, efforts to seek police misconduct records continue to make their way through the administrative process and the courts. In New York, challenges continue to flow through the system. Despite the two recent Appellate Division opinions, word from the state’s high court, the Court of Appeals, may be needed to clarify how the 50-a repeal should be interpreted and what standards will apply to both lower courts and, more importantly, the police departments and municipalities holding those records. It is no surprise that those seeking the release of police disciplinary and misconduct records following the repeal have been stymied by government officials, buttressed by police unions and a general antipathy for public scrutiny. Even in cases where courts have ordered agencies to comply with records requests, at least one municipality reported that it would likely take up to two years or more to comply or turn over documents (continued)

Hofstra Law Review, vol. 52(3) 2024, 41p.