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January 10, 2018

Police Union Sues Over City's Release of Body Camera Footage, Citing Records-Shielding Law

The union representing New York City police officers filed suit in state Supreme Court in Manhattan Tuesday over the release of officer-worn body camera footage by the city.

The union claims the footage is subject to privacy protections granted to law enforcement officials under state Civil Rights Law Sec. 50-a. In a statement, PBA President Patrick Lynch said the city’s release of the footage represented a public safety and due-process situation that has “serious implications."

"The basis of this suit is simple: we're suing to prevent the mayor and the NYPD from arbitrarily and illegally releasing body camera footage,” Lynch said. "The mayor and the NYPD have shown a reckless disregard for these concerns by circumventing the existing process set up by the state Legislature and selectively releasing portions of videos to suit their own interests.”

Lynch continued: “Nobody with a stake in these issues should be comfortable with this politicized, secret and unchecked process: not the district attorneys, not good government advocates, not the public, and certainly not police officers and their families whose personal safety is being placed at risk."

Of particular concern to the union was the Sept. 14, 2017, release of footage showing police fatally shooting a man wielding a knife and a fake gun in the Bronx just days earlier. The PBA alleges that the city’s decision to release the footage represented a clear violation of the law. “The statute, caselaw, and stated objectives of the [body-worn camera] program leave no doubt that the footage is protected from disclosure under” 50-a, the union claims in its complaint.

According to the PBA, neither Mayor Bill de Blasio or Police Commissioner James O’Neill explained why they “unilaterally” released the footage, even over the objections of Bronx D.A. Darcel Clark and the police union. At the time, the police department released a statement calling the decision to release body camera footage precedent-setting.

However, the PBA argues that city officials have never explained “the standards and procedures they purportedly follow in deciding whether to release BWC footage and, if so, what the nature of the release should be.”

Since then, the city has continued to release footage of officers involved in incidents, despite what the PBA alleges is the city’s failure to obtain a court order authorizing the release. “Instead, the commissioner, acting at the mayor’s direction, made a decision that may have been politically expedient but was unlawful,” the complaint contends.

The complaint goes on to accuse the police department of “tortured logic” in its justification for the release. The department, according to the union, has said its creation of a new document that contains redactions essentially operates as a work-around to document protections the union claims under §50-a.

“If Civil Rights Law Sec. 50-a only applies to the original and complete personnel file, then respondents could simply circumvent all intended protections by releasing a selective but incomplete collection of an officer’s personnel records, repackaging copies of those records, or summarizing the contents of those records,” the union asserts. “To so construe Civil Rights Law Sec. 50-a as respondents argue would be to effectively erase it from the state statutes.”

The union’s suit is the latest flare-up in an ongoing battle between legal reform advocates, law enforcement and their supporters, and localities throughout the state over how much, or little, information related to an officer should be made public based on a given reading of the law.

The law itself states that records used to evaluate police and other law enforcement officials “toward continued employment or promotion” are barred from being released without a court order. Advocates have argued that, for years, the reading of §50-a was a narrow one.

More recently, however, localities and agencies have begun arguing for a broader interpretation. New York City led the way when, in 2016, it ceased after decades to release so-called personnel orders that, among other things, listed dispositions in administrative cases against officers. In recent months, even such items as videos showing altercations between correction officers and inmates have seen authorities invoke the §50-a protection.

Currently a number of lawsuits by groups such as the New York Civil Liberties Union and the New York Legal Aid Society are winding their way through the state’s court system over the issue. In a statement, Cynthia Conti-Cook, staff attorney at LAS’s special litigation unit, said the PBA’s suit “has no legal merit,” amounting to little more than a “public relations stunt.”

“Even under the most extreme reading of 50a, it does not grant a privacy right to police; it merely allows the state to withhold information despite a FOIL request under certain circumstances,” Conti-Cook stated. “There’s no legal argument prohibiting the state [or city] from releasing officer video footage. The state can always choose to disclose footage, information, or documents which is why its choice to withdraw summaries of officers’ disciplinary records, which have been available since 1972, is so jarring.”

The city and advocates hoping the body camera footage continues to be released are on the same page, at least in this regard. A city official who requested anonymity to discuss sentence matters stated that §50-a’s “true intent” has been to block excessive litigation, and to prevent the release of sensitive personnel records that could lead to that. City officials continued to contend that the disclosure of body camera footage was not covered under §50-a on these grounds.

“The mayor and the police commissioner have spoken to the need for increasing transparency into the way our city is policed,” de Blasio spokesman Austin Finan said in a statement. “The release of body camera footage, when possible, is an important extension of that commitment.”