Measure Would Undo Police Accountability Law
A bill that would make it easy for police to hide for years body-cam videos and other evidence of police misconduct is sitting on New York Gov. Kathy Hochul’s desk.
Until now it has received no news coverage.
Senate Bill S7734 would undo a reform law enacted last summer and that took effect just weeks ago to increase police accountability and protect citizens from excessive use of force by making it hard for police to withhold body-cam and dash-cam video and evidence documenting police interactions with citizens.
The theory is that such videos are the best evidence of police actions and can help the public understand whether officers acted reasonably and lawfully or were out of control.
“This was passed while we slept,” lawyer and journalist James S. Henry said.
The bill on Hochul’s desk was passed under the guise of making routine “technical corrections.” Advocates for the 2021 reform law say the bill before Hochul is actually a wholesale gutting of the police accountability law.
The reform law enacted last year, known as Senate Bill 6017, repealed the decades-old carve out of the Freedom of Information Law. That carve-out made it easy for police to withhold videos and other evidence for the public to examine. The bill before Hochul would restore, expand and strengthen the ability to hide videos and the like.
“This is a disaster for holding police accountable and for New York State’s Freedom of Information Law,” said lawyer-journalist James S. Henry of Sag Harbor, one of the backers of the 2021 police accountability law. He is also a DCReport journalist.
The bill would “effectively repeal last year’s bill requiring close judicial review of police claims that evidence like body cams and anything else under their control or any other agency is subject to an ongoing investigation and can be withheld from the public,” Henry said.
Lawyers who work in the Freedom of Information area, said Henry, “know that if Hochul signs this bill the police can and will delay release of videos and other evidence for years. This will kill live cases on appeal involving alleged police murders.”
If Hochul signs the legislation police can withhold any evidence by simply asserting that an investigation is under way. Even if the evidence would not interfere with the probe the material could be kept secret.
Much more significant, though, is a clause that would allow any other government agency to object to releasing files and videos even when a police department is willing to do so.
That the Senate at least may have had no idea what the bill actually does is shown by the votes for the 2021 law and for the legislation that would undo the 2021 reform law.
The 2021 law passed by a vote of 54-9 while the supposedly technical corrections bill now before the governor passed 54 to 10.
“This was passed while we slept,” Henry said.
Cory Morris, a Long Island lawyer who specializes in Freedom of Information cases, said “Hopefully we can persuade the governor to refrain from signing this.”
Morris won a case against the City of Middletown and now has copies of its police misconduct records at his law office. A case against Suffolk County police is in litigation.
Henry, Morris and Joe Finnerty, a well-known government transparency lawyer in Buffalo, are organizing efforts to persuade Hochul to reject the proposed law.
A draft letter circulating among lawyers tells Hochul that the bill “removes positive changes to the Freedom of Information Law (FOIL) that just became effective at the beginning of this year, the requirement, in law, of a particularized and specific explanation for each record (more than just paper) withheld consistent with longstanding FOIL case law.
“This FOIL repeal will negatively impact the public by making changes… without any time frame, involved in the investigation for the records sought prior to release.
“This proposed legislation will allow another [non police] agency to object and assert an exemption even if the agency where the request is made does not. This literally promotes the assertion of an exemption to FOIL as opposed to transparency and disclosure. This proposed legislation eviscerates the longstanding requirement that any exemption be particular to a specific agency need or statute.
This proposed legislation allows the complete concealment of the law enforcement file, all records, based on an active proceeding even if the release of records will not interfere with the proceeding. It also removes the newly enacted provision that would allow for a judge, a neutral person, and not the prosecuting agency, for example, to make that decision.
“This legislation is literally two steps backward.”
We will update you when we get comments from the governor or her staff.