States must lift the veil of secrecy over police misconduct
Amid nationwide demands for police reform, New York State has finally repealed 50-a, a controversial law used for over forty years to shield police disciplinary records from public scrutiny. While the repeal is a major win for transparency, at least twenty states and the District of Columbia still refuse to disclose such records, with another fifteen states permitting only limited disclosure. Compounding the problem, police union contracts in many cities require that officer disciplinary records be erased after a set time period, sometimes as short as six months.
Following the killing of George Floyd, an unarmed black man, at the hands of a Minneapolis police officer with a troubling disciplinary history, advocates are rightfully calling for states to amend their open records laws to permit public access to officer misconduct information. New York’s repeal of 50-a was a positive step in that direction. But merely repealing such laws is not enough; states should enact comprehensive reforms creating both an affirmative right of public access to police disciplinary records and a duty to preserve those records. Such reforms are a critical step to piercing the veil of secrecy over our nation’s police departments, which for too long have covered up abuse and turned a blind eye to repeated officer misconduct. Disclosure of this data is also critical because, in many instances, officers fired for misconduct can simply move to a nearby jurisdiction or another agency while remaining in law enforcement.
How States Keep Police Misconduct Secret
The case of Eric Garner, another unarmed black man killed by police, illustrates how secrecy laws impede accountability. In 2014, New York Police Department (NYPD) officer Daniel Pantaleo killed Garner using a chokehold maneuver prohibited by department policy. When Garner’s family and the press tried to obtain Pantaleo’s disciplinary records through public records requests, the NYPD denied the requests under 50-a. Several years later, Pantaleo’s complaint history was leaked to the media. It revealed that he had four prior substantiated complaints for abusive stops and searches, and that even though a civilian review board recommended the harshest penalties for those complaints, the NYPD chose to impose lesser discipline. Had this information not been leaked, the law would have allowed the NYPD to keep Pantaleo’s record secret, shielding both the department and the officer from much needed public scrutiny.
With the repeal of 50-a, Delaware is now the only state with a law explicitly deeming police disciplinary records confidential. Under a statute known as the Law-Enforcement Officers’ Bill of Rights, “all records compiled as a result of any investigation” of officer misconduct “shall be and remain confidential and shall not be released to the public.” Since its adoption, the statute has prevented citizens from learning which officers have faced investigations for potential misconduct, and, “more importantly,” what the “final determination of the investigation was,” noted one Delaware county official. The result is that the public, including the press and oversight groups, is unable to scrutinize either the records of individual officers or the overall effectiveness of police departments’ disciplinary processes.
Other states do not categorically prohibit disclosure of police disciplinary records, but effectively do so by withholding them under exemptions to public records laws for “personnel records” or exemptions designed to protect “personal privacy.” In weighing the public’s interest in obtaining these records, courts often treat police officers as indistinguishable from other types of public employees. But, as the New York State Committee on Open Government has observed, this approach ignores the reality that “police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees,” whether through frisks, searches, arrests, or the use of deadly force. Given the significant authority society entrusts with police officers, requiring disclosure of their disciplinary history is hardly an unreasonable demand.
“Routine Purging” of Disciplinary Records
The right of access to disciplinary records only has meaning if police departments are required to preserve those records in the first place. Yet in several cities, police union contracts require routine “purging” of disciplinary records. A 2017 Reuters investigation analyzed 82 police union contracts in large cities across the country and found that “a majority of the contracts call for departments to erase disciplinary records, some after just six months.”
Destruction of disciplinary records not only undermines transparency; it can hinder police departments’ efforts to fire known bad actors. “Officers who become involved in shootings or other serious violations frequently have faced less serious allegations in the past. By limiting the use of past complaints, . . . union contracts can render institutions unable to correct their own behavior,” said Jonathan Smith, former chief of special litigation in the Civil Rights Division of the U.S. Department of Justice.
Recent experience in California further shows that any effort to grant the public a right of access to police personnel records must be accompanied by robust records preservation requirements. Soon after the state enacted Senate Bill 1421—a landmark transparency law providing public access to certain police disciplinary records—reports emerged of California police departments destroying “years’ worth of records,” including “internal affairs investigations of dishonesty and sexual misconduct.” While county officials claimed these were “routine purge[s],” the Los Angeles Times reported that “many of the records that were destroyed had already been kept years beyond their required retention dates, and were potentially responsive to pending public records requests.”
Potential Legislative Fixes
Lifting the veil of secrecy requires more than simply repealing laws like 50-a—states must enact comprehensive reforms creating both an affirmative right of public access and a corresponding duty to preserve. Such reforms should include at least the following components:
- Full disclosure of officers’ complaint and disciplinary history. This should include the complaints themselves, the current status of any pending complaints, evidence and transcripts from any disciplinary trial or hearing, and any recommendations from civilian review boards or similar entities regarding potential discipline. It should also include the final outcome of any investigation or disciplinary proceeding and opinions explaining the basis for that decision. These requirements should be subject only to limited and clearly-defined exemptions authorizing the redaction of sensitive personal data such as home addresses, telephone numbers, medical history, and personally identifiable information for private parties. New York’s Senate Bill 8496, which repealed 50-a, includes many of these requirements, and could serve as a useful model for other states.
- Permanent retention of complaint and disciplinary records relating to an officer’s alleged use of force resulting in bodily injury or death, discharge of a firearm, or claims of sexual assault or abuse; mandatory retention of any complaint or disciplinary record sought through a public records request until at least the request is fulfilled; and temporary retention of all other types of complaint and disciplinary records for at least five years.
- Criminal penalties for destroying disciplinary records in violation of statutory preservation requirements.
- Clarification that the law applies to records created prior to its effective date—an issue that has become a serious point of contention in California following its enactment of Senate Bill 1421.
At the federal level, legislators are pursuing important pro-transparency measures in the recently-introduced Justice in Policing Act of 2020, which would require state and local law enforcement agencies to provide the federal government with detailed complaint and disciplinary data to be compiled in a public “National Police Misconduct Registry.” But in order for the full slate of police disciplinary records to see the light of day, a direct overhaul of state public records laws is necessary.
Whether pursued at the state or federal level, or both, reform is urgently needed. Such legislation comes with little downside, as the criticisms of police transparency laws—raised mostly by police unions or officers themselves—have proven unfounded in practice. Leading criminal justice experts have instead reported that states with “broad sunshine laws . . . have taught us that public access can be a crucial component of police accountability without impeding proper police action.” There is no excuse for waiting. With demands for police reform reaching fever pitch across the country, the time to act is now.