Chautauqua County’s district attorney and its state Senator are decrying a rash of Freedom of Information Law requests seeking police department disciplinary records.

In separate statements Monday, both Patrick Swanson, county district attorney, and state Sen. George Borrello, R-Sunset Bay, criticized the way the repeal of Section 50-A of the state Civil Rights Law is being used.

Borrello said officials in the town of Cuba have been contacted by an organization called MuckRock which is seeking all police personnel files dating back to the 1970s. Borrello said it is his understanding MuckRock has made similar requests of every police agency in New York state. Swanson said the town of Carroll has received a similar request recently.

“At a time when localities are struggling to meet their regular expenses because of the crushing impact that COVID-19 has had on their budgets, it is outrageous that they will now be required to devote precious staff time and taxpayer dollars towards searching, copying, faxing and emailing decades-old personnel files containing groundless claims, even those where the officers involved have been deceased for decades,” Borrello said. “For many police departments, the small reimbursement that they are entitled to collect from the requesting organization won’t even begin to cover the costs. Services to the public may even be impacted.”

The 50-a repeal was signed into law earlier this month after Gov. Andrew Cuomo signed A.10611/S.8496. Assemblyman Andrew Goodell, R-Jamestown, and Borrello both said at the time that the legislation is poorly written and shouldn’t have been passed in its current form.

The repeal took effect June 12. Under prior law, a government agency could release personnel and disciplinary records only by court order or written consent of the individual whom the records concerned. Repealing 50-a means disciplinary records are subject to the Freedom of Information Law, which was also amended as of June 12, 2020.

“The complete repeal of 50-a goes too far and accomplishes nothing more than a public flogging of those who protect and serve us each and everyday,” Swanson said. “So often, legislators are quick to pass reactionary legislation. Nearly every time this is done, there are unintended ramifications. With any sweeping change to our laws, deliberation and responsibility go a long way. It is unfortunate those two components to solid leadership are often passed by in an effort to ride the ever-changing political winds. We are at a point where our society needs serious mending. That will come from all political parties, cultures, and creeds working together. At some point the good of our state and our nation rests on partisan politics being cast aside for the greater good. I hope that is soon. We can and must do better.”

According to HodgsonRuss, a law firm that represents many municipalities, while personnel and disciplinary records are now subject to FOIL, the FOIL amendments require the redaction of certain information before the public can read them, including an officer’s medical history, home address, Social Security number and contact information.

Records available include any record created as part of a police department disciplinary hearing, including the complaints, allegations and charges against an officer; the name of the officer on whom the complaint is based; a transcript of the disciplinary trial or hearing as well as any exhibits; the disposition of the proceeding and any final written opinion or memorandum supporting the disposition and discipline imposed, including the factual findings, analysis of conduct and appropriate discipline.

Swanson said he prefers a state law that seals unfounded complaints while allowing investigations into complaints and punishment if warranted.

“While transparency is beneficial in the effort to instill public confidence and trust, the collateral consequences of what the state legislature has done with the repeal of 50-a will be far reaching,” Swanson said. “There are many, many unsubstantiated complaints made against good and decent police officers. Those unfounded complaints, when aired publicly will stain the reputation of our officers unjustly. This will effect them, their friends and their families. Why? Because they went to work and someone filed a bogus complaint against them. This is not to say that I believe that complaints get swept under the rug or that misconduct go without ramification. Investigation into complaints and punishment if necessary must be done. I am a proponent of ensuring that our officers are fair, ethical, without prejudice, and honest. But publicly opening up their files to every disciplinary action during the course of their career serves little purpose. As prosecutors of criminal charges, we are required to turn over the contents in the police personnel files that are substantiated. This is to ensure fairness in the criminal process.”

Hodgson Russ officials also write that it is possible for records officials to redact a police officer’s technical infractions, minor rules violations that are administrative in nature and which do not involve interactions with members of the public. There are also questions about how many years into a department’s records a municipality’s records officer is expected to search as part of a FOIL request.