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Here's Why the NYPD Stopped Releasing Discipline Records and What it Means

By Murray Weiss | September 1, 2016 7:41am
 NYPD Commissioner Bill Bratton speaks at One Police Plaza on Monday, June 27, 2016.
NYPD Commissioner Bill Bratton speaks at One Police Plaza on Monday, June 27, 2016.
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DNAinfo/Ben Fractenberg

NEW YORK CITY — The NYPD has stopped releasing “personnel orders,” which include police officer disciplinary actions, to the media insisting they have suddenly realized providing the information violated a 40-year-old state law.

It was “a lapse in oversight on our part [and when] brought to our attention, we corrected it,” Commissioner Bill Bratton said Tuesday of Section 50-A of the New York State civil rights code, which restricts officers’ personnel records from public release.

And “the resolution,” Bratton continued, “despite all the hue and cry, is not with the police department, not with the city of New York, but with the legislature of the State of New York.”

But numerous former top police officials, department observers, and even long-time police labor leaders, who were pleased with the department's sudden reversal, say the NYPD was well aware of 50-A for years.

Here's a look back at the history of 50-A, and what the NYPD's actions this week will mean going forward:

What do the unions say?

“We were always objecting to releasing personnel orders, even before 50-A was enacted,” said Louis Mattarazzo, a former president and vice president of the Patrolmen’s Benevolent Association, who has been involved in police labor issues for 50 years.

“They were pretty good in general about a lot of things, but not that,” he added. “And history has taught me, the NYPD rarely does anything that is not good for the NYPD.”

A former longtime top police official agreed.

“It’s a little baffling since there is nothing new in the law that has changed, and it seems to be part of a continuing pattern of rolling back of public access,” the ex-official said. “There must be another reason at play.”

What caused the NYPD to enforce Section 50-A now?

Robert Freeman, executive director of the state's Committee on Open Government, believes the NYPD reviewed their policy and decided to hold back access in the face of mounting public interest in police actions.

"They are aware of the public's interest in knowing whether police officers are doing a good job or otherwise, particularly in consideration of events, both local and nationally, that have attracted a great deal of attention," he said.

Sources say the legal turnaround stems partly from an article by DNAinfo New York’s “On the Inside” in April, which reported that NYPD Officer Daniel Pantaleo, who was involved in Eric Garner’s chokehold death, was found guilty of making an “unauthorized frisk without legal authority” during a separate stop that pre-dated the 2014 Garner tragedy.

That disciplinary action was included in a Feb. 26, 2016, “personnel order” that chronicled an array of NYPD transfers, promotions, disciplinary actions and even deaths of retired police.

The Pantaleo order also said the Civilian Complaint Review Board had recommended a stiff eight-day punishment for the unauthorized frisk, but Bratton, who is the final arbiter of discipline, ordered Pantaleo to forfeit only two vacation days.

The NYPD attributed the delay to a system wide backlog caused by an outmoded system that the department was trying to update.

Shortly after the “On the Inside” article, sources say a civil liberties organization’s filed a Freedom of Information Law request involving disciplinary records, and the "personnel orders."

NYPD officials and lawyers revisited the policy, and concluded the department had engaged in a four-decade long legal “lapse in oversight” of Section 50-A.

“We reviewed the material carefully and determined it does fall squarely within the definition of 50-A,” said Lawrence Byrne, the NYPD legal bureau deputy commissioner.

“This is not a new definition,” he continued. “Courts have ruled on this for decades and have ruled again and again and again that this type of information cannot be disclosed under 50-A.”

Mayor Bill De Blasio agreed.

“In terms of the specific disciplinary pieces that state law precludes that disclosure so we obviously have to honor state law,” he said.

Why was Section 50-A enacted in the first place?

Section 50-A was enacted in 1976 to primarily prevent criminal defense attorneys from having instant ammunition to use in court to undermine or besmirch the credibility of an officer testifying at a trial, or harass them, without court approval, legal experts and officials say.

Yet, despite its enactment, the NYPD did not stop routinely making “personnel orders,” and other sensitive materials, available to the press.

At the time, the NYPD was still reeling from the Knapp Commission, which exposed systemic corruption that included wholesale bribery and protection rackets involving all ranks of the NYPD.

Transparency was perceived as pivotal to re-assuring New Yorkers that the NYPD would clean house, and not cover-up for its wayward officers.

"There was a real belief that publishing orders, and discipline records, and allowing public knowledge of these things, helped maintain a certain level of scrutiny and internal order within the department," recalled a top police official involved in the thinking at the time.

“It was all about transparency, about things that mattered to observers of the NYPD,” the official said.

What did reporters have access to?

The NYPD for years hand-delivered “personnel orders,” and crime reports and other internal memos into reporters' mail boxes at Police Headquarters every morning.

Then that changed, and the documents were eventually posted sporadically on shared clipboards inside the NYPD Office of the Deputy Commissioner of Public Information.

And that was not the only rollback over time — and over protests by the press and public advocacy groups.

Soon, the daily “principal case sheets” that cataloged major crimes during the previous 24-hour period, and frequently ran up to eight pages during the “Bad Old Days,” vanished.

Then the annual Internal Affairs Bureau report — a glossly 80-page magazine replete with statistics and narratives about investigations — disappeared.

For years, the NYPD distributed the report knowing it would generate a negative story — but they believed the stronger message about transparency and fighting corruption outweighed the hit.

When a reporter (yours truly) obtained an annual report after it was held under-lock-and-key, the NYPD forever altered the way it wrote the report, shrinking it to a handful of pages with a jumble of stats that were of little value, even to police officials.

“It’s about controlling the information, and the narrative,” another ex-police official observed.

“And sometimes they have good reason, considering the media tends to look for scandal, or knee-jerk blame the police, and now, with the broadening of cable and advent of internet websites and 24/7 news cycles filled with instant news and opinions, with little filtering or reflection, many agencies have to re-think how they do business,” the official continued.

“And what happens is they ask: ‘Do we really have to put this out when we are causing our own problems?’”

Has the NYPD violated other similar laws?

The NYPD had no problem violating the law when it came to releasing its stop-and-frisk numbers, which they were required to do following legislation enacted in the wake of the police killing of Amadou Diallo.

For at least five years, the NYPD failed to hand over its stop-and-frisk stats. And when they finally did, under pressure, it revealed the number jumped from 100,000 a year when Mayor Michael Bloomberg took office to roughly 700,000 in 2011.

Many critics believe the rift between New York's Finest and the people they serve — caused by the aggressive policing tactic — might have been avoided if the information had been released earlier.

What happens next?

Observers are wondering what will happen with other public access at the NYPD.

Presently, the NYPD’s trial rooms are open to the public, as are their outcomes.

Asked if that could change, a department spokesman said the NYPD might be forced to review that, and other public access issues, in light of their interpretation of Section 50-A.

Meanwhile, good government groups, such as the State Committee on Open Government, are lobbying to change the 50-A law — claiming it has morphed into a blanket protection for police that other public employees do not enjoy, and has become a blindfold on the public.

"We believe the interpretation of 50-A has become unnecessarily broad," Freeman said.