New York's Court of Appeals is set to review the first in a potential steady stream of suits challenging the broad application of a law shielding certain documents in the personnel files of police officers and other public employees from public exposure.

The suit, filed by the New York Civil Liberties Union, will be the biggest civil liberties test yet for the young court. All the judges were appointed under the current governor, Andrew Cuomo, with the longest-serving judge, Jenny Rivera, having been on the bench for less than four years.

“Through this decision they are going to set a tone statewide about how to balance officer privacy interests against police accountability interests,” said the NYCLU's associate legal director Chris Dunn, adding that the balance right now is “skewed heavily” toward law enforcement and other agencies.

“We are hoping and expecting that the court is going to recalibrate that balance with a greater emphasis on accountability,” Dunn continued. “If it does that, that's going to affect the application of 50-a across the state, and across the wide range of law enforcement agencies.”

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A Challenge for the Court

Section 50-a of the state's Civil Rights Law creates an exemption in Freedom of Information Law requests for law enforcement officers' personnel records related to performance and ongoing employment as well as in certain court proceedings absent judicial review. The intent of the law passed in 1976 was in an effort to prevent criminal defense lawyers from using officers' personnel records in cross examination during prosecution, said Assemblyman Danny O'Donnell, a Manhattan Democrat and former chair of the chamber's corrections committee.

Frank Padavan, a former state senator from Queens and chief sponsor of the legislation that created the exemption, said Monday he did not recall the intent behind the 1976 law. But in an interview with the Albany Times-Union in December, the 82-year-old said that the original intent of the law was to prevent attorneys from gaining unfettered access to police officers' personnel records.

Observers on all sides acknowledge that the high court has over the years interpreted 50-a protections broadly. Some, like Albany Law School professor Vincent Bonventre, see the court opting not to read the statute in its entirety.

“The statute says one thing—that the documents shall be confidential—but the statute also allows for when there is good cause, the courts to allow access to these documents,” he said. “The court has gone out of its way to use 50-a to prevent access to police files in virtually any kind of case.”

Bonventre agreed that the new wave of 50-a suits present a unique opportunity for the young court. By his count, as many as four of the seven current members could, given the public debate and their potential backgrounds, move the court toward a narrower decision. Rivera is generally considered its most liberal member of the court. She joins Judge Rowan Wilson, the court's only African-American member, and Judge Paul Feinman, its first openly gay member, as a potential liberal bloc that could “vote to soften” the court's more rigid interpretations of 50-a, Bonventre said.

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First of Many

In late August, the Court of Appeals agreed to hear the appeal of a March opinion by the New York Appellate Division, First Department, in support of the New York City Police Department's use of 50-a to block a FOIL request for a decade's worth of internal department legal proceedings involving officers.

The suit, Matter of New York Civil Liberties Union v. New York City Police Department, brought by the New York Civil Liberties Union, sought final trial room decisions approved by the NYPD commissioner in cases of police misconduct initiated by the police oversight body, the Civilian Complaint Review Board. The civil liberties organization also sought documents detailing the disposition of charges in the actions.

Despite believing “that the public has a compelling interest in ensuring that respondents take effective steps to monitor and discipline police officers,” the panel sided with the CCRB, agreeing that Court of Appeals precedent empowers those entrusted with law enforcement personnel records to shield officers' identifying information from public view.

Dunn said the suit “perfectly captures the most troubling way 50-a is being used to block police accountability.”

“These decisions represent the police department's own determination about whether a police officer engaged in misconduct with a civilian or not, and the legal reasoning for that determination,” he said. “The whole point of our FOIL request here was to uncover the way the police department was deciding these misconduct cases. It was not about whether a police officer did something right or wrong; it's about how the police department is assessing misconduct.

The Court of Appeals recently announced the briefing schedule in the suit. The NYCLU's initial brief is due Oct. 30. Dunn said he expected oral arguments before the court in the spring term.

The NYCLU suit may represent the leading legal action over 50-a in the state, but two other recently decided suits at the appellate level filed by the Legal Aid Society could soon join them.

The same day the panel ruled in the NYCLU case, it also dismissed a suit by the Legal Aid Society that could potentially join the NYCLU in the Court of Appeals. The appellate panel in Matter of Luongo v. Records Access Officer, Civilian Complaint Review Board delivered a similar result as in the NYCLU suit, reversing an order releasing portions of NYPD Officer Daniel Pantaleo's file with the CCRB. Pantaleo was the officer in a widely seen video applying an apparent chokehold to Eric Garner moments before he died in police custody.

According to Cynthia Conti-Cook, a staff attorney with Legal Aid's special litigation unit, part of what's being lost in the course of litigation is the fact that 50-a is part of the state's FOIL, which directs the government to determine exemption narrowly.

“What the de Blasio administration has done, and now what other state agencies reflexively are doing, is err on the side of overly broad interpretations, rather than being committed to access to information being the rule,” she said.

Mayor Bill de Blasio and the leadership of the police department, including its current commissioner, James O'Neill, have called on the legislature to amend the law to allow for more transparency.

In a statement, de Blasio spokesman Austin Finan said the “public interest is greatly disserved … in its current, flawed form.”

“It deprives New Yorkers of the transparency we deserve and the mayor has been unequivocal about that fact, laying out a set of guiding principles that he and others believe should shape its amendment,” he said.

A spokesman for the NYPD referred to previous statements made by the department on the issue. In an October 2016 press release from the mayor's office, O'Neill said in a statement he believed in “transparency.”

“I also believe that making information about disciplinary proceedings public will help us build trust with the community,” the commissioner said. “It is my hope we can work with the state legislature and the governor on the proposed 50-a amendment.”

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The Law Expanded

While the suits currently moving towards the Court of Appeals are focused on officials' actions in New York City, the most recent attempts to expand 50-a's coverage occurred further north and they involved not local law enforcement but employees of a state agency.

On Jan. 4, 2016, Darnell Green, an inmate at the Green Haven Correctional Facility in Stormville, was involved in an altercation with a correction officer. The event was caught on video. A few months later, Green submitted a FOIL request to the state Department of Corrections and Community Supervision for a copy of that video.

In early October 2016, Green received notice that his request was denied, with DOCCS citing 50-a. According to court records, officials declared the video a document “used to evaluate the performance of an officer,” adding that “there is a substantial and realistic potential for this record to be used to harass or embarrass a [DOCCS] employee covered” by the law.

In her Sept. 11 order in Green's suit over the video, Albany Supreme Court Justice Lisa Fisher notes that videos of interactions with law enforcement have become increasingly common, both on the public side as well as within departments. The use of body cameras and handheld records, as well as the kinds of stationary video surveillance at issue in Green's case, are finding their way into debates about officers' actions, prosecutions of offenses, and “undoubtedly” as part of officers' employment evaluation.

However, Fisher notes, to place a video such as this, which isn't “confidential and personal” but one that occurred in a correctional facility, behind the shield of 50-a would “allow every video recording” by a law enforcement official to be withheld.

DOCCS could, she said, “theoretically cloak any 'matter material and necessary' merely by placing such video footage into a personnel file and using the video footage to evaluate the officer's performance.” She ordered the video released.

Patrick Bailey, a spokesman for DOCCS, said the department was aware of the decision and was reviewing it.

Green was represented by the Prisoners' Legal Services of New York. Prior to the denial of Green's request, the group's executive director, Karen Murtagh, said the organization hadn't run into any issues with similar requests from the correction department. But over the past year-and-a-half, the department has been applying a “very broad definition” to what falls under 50-a protection, she said.

“The issue is: personnel records—what is that,” she said. “It's never been really defined.”

While she applauded Fisher's decision, Murtagh noted that another client's case was currently pending over similar issues.

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The Legislative Fix

Even as recently as the NYCLU's decision in Manhattan appellate court earlier this year, judges have suggested the proper fix of any issue with the law is with the legislature. Some, like New York City Mayor de Blasio, have attempted to work with stakeholders to come with legislation. The mayor's office says it's committed to continuing those efforts.

In Albany itself, the response has so far been anemic: O'Donnell sponsors legislation to repeal the statute, which has no companion bill in the upper chamber.

“FOIL law has sufficient protection for police officers. FOIL is FOIL and video tape of a police officer acting in his duty and official capacity should be available,” O'Donnell told the New York Law Journal. “The world has changed since the 70s. Information is captured and contained differently.”

Outright repeal of 50-a is “probably the cleanest way to go but also the most politically difficult way to go,” he added. Despite being a member of the Democratic majority in the state assembly, O'Donnell's bill to repeal 50-a was not brought to a vote in the chamber, instead staying in the governmental operations committee for the duration of the legislative session. The proposal also has no companion bill in the Republican-led State Senate, which has been closely aligned with law enforcement.

In a statement, Patrolmen's Benevolent Association president Patrick Lynch noted 50-a's original intent was to protect “those who risk their lives to enforce the law.”

“Removing these protections will put police officers at greater risk of the types of targeted attacks we have seen with increasing frequency,” he said.

Lynch also raised the specter of criminal trials being turned into “smear campaigns against hard-working police officers” should defense attorneys gain greater access to police files.

“Nothing has changed to negate the need for this law and we will strongly oppose any changes to it,” Lynch said.