An obscure legal determination has gone a long way toward making New York’s police discipline process even less transparent.
It’s a highly technical change, but one that closes a window that, however briefly, allowed an important view into the function of the city’s Civilian Complaint Review Board.
Since at least 2013, transcripts of CCRB-run administrative trials — reserved for the most serious accusations against NYPD officers, things like excessive force and use of chokeholds — had been released more or less on demand by CCRB staff.
The change is especially relevant in the wake of the death of Eric Garner, and the public outcry since. The transcripts were the one bright spot in an otherwise closed system, providing a wealth of knowledge to reporters and any other interested party. The Village Voice used CCRB trial transcripts extensively when it reported, earlier this year, about the chokehold allegations made by Angel Martinez, a young man in the Bronx who claimed he was roughed up by police.
But the New York City Law Department in September ruled that even those files are now off limits to the public. They are now immune from the state’s Freedom of Information Law — making it even harder to judge the functioning of the police disciplinary system.
A recent request for transcripts, filed under FOIL by the Village Voice, was denied initially and again on appeal, despite identical records having been released, upon request, just a few months ago.
New York is one of many states in which police disciplinary files are protected by law, and under previous legal decisions, virtually every other aspect of the CCRB’s work — with the exception of the trials — was already considered confidential.
But the administrative trials themselves are actually open to the public for observation, a fact that some legal experts say undermines the Law Department’s position. If one can attend a trial, and presumably even transcribe what is said during the proceedings, how can the agency’s own transcripts be considered secret?
Robert Freeman is director of the state’s Committee on Open Government, the state agency tasked with safeguarding the Freedom of Information Law, and also helped draft the statute. He said the Law Department’s decision flies in the face of both common sense and legal precedent. Because the trials are held in public, he argues, the transcripts of those trials can’t possibly be considered confidential — no matter what kind of information might be aired during the proceedings.
“When a disclosure or comment is made during a public, judicial, or quasi-judicial proceeding,” Freeman says, “the cat is out of the bag, and the information becomes public.”
The CCRB has been a magnet for criticism for almost as long as it has existed. About 60 percent of complaints that go to the board are never fully investigated, often because the board loses touch with complainants or can’t convince them to continue the process. And only a tiny portion of complaints — between 7 and 14 percent over the past decade — are ever “substantiated,” or found to have merit. An even smaller number ever makes it to an administrative trial.
A spokeswoman for the CCRB, Linda Sachs, acknowledged that the transcripts had been freely released as recently as a few months ago. The agency’s former executive director, Tracy Catapano-Fox, who was dismissed earlier this fall and is currently suing the city, had instituted a blanket policy calling for their release.
That all changed in September, Sachs said, when a request came in for a transcript of an already completed trial. It was a situation the agency hadn’t yet encountered, and which could have changed the legal calculus. When the agency sought an opinion about the document’s release, the Law Department issued its more restrictive advisory opinion.
Richard Emery, who took over as chair of the CCRB this summer and has made transparency a priority, said through Sachs that “he’d like to release everything that is permitted by law…but when the Law Department issues an advisory opinion, we do not have the luxury of following our own personal preferences.”
Catapano-Fox and the Law Department declined to comment for this story.