All three of elected representatives who represent Chautauqua and Cattaraugus counties voted against a repeal of legislation that shields police officers’ personnel records from public scrutiny.

The bill is among the legislation signed by Gov. Andrew Cuomo on Friday after their passage earlier this week in the Senate and Assembly. The centerpiece of the legislative package is A.10611/S.8496, legislation that repeals Section 50-a of the state Civil Rights Law.

While advocates and Gov. Andrew Cuomo laud the measure, Assemblyman Andrew Goodell, R-Jamestown, and state Sen. George Borrello, R-Sunset Bay, both say the legislation to repeal Section 50-a of the state Civil Rights Law is poorly written and shouldn’t have been passed in its current form.

“The brutal and unjust death of George Floyd has shaken all of us and opened a wound in our nation that demands attention,” Borrello said in a news release. “However, the Senate majority attempted to fix a terrible injustice by opening the door to many more injustices. The repeal of section 50-a of the Civil Rights Law will heighten the already-significant risks our men and women in law enforcement face every day by allowing for the public release of personnel records, including reports of unfounded complaints.”

“It is an action that creates potential for harm to the reputations, jobs and even the safety of those who dedicate themselves to protecting us and our communities. It takes away their constitutional right to due process. This terrible incident could have been the impetus for a much-needed dialogue with all parties, including our law enforcement community, on the most effective way to achieve real, lasting reform. Instead, the rush to ‘do something’ won out.”

Goodell, in his comments on the floor of the Assembly, said reforming Section 50-a is needed, but echoed Borrello’s complaints about releasing reports of police misconduct that are ultimately unfounded.

“This bill, in my opinion, goes too far,” Goodell said. “We need to reform 50-a. I agree. But what we’re doing is we’re allowing claims that were determined to be false or untrue or malicious or unfounded to be available to the public and we’re doing nothing to protect the good reputation of our officers from unfounded claims. So I hope as we move forward that we look for a way to protect our officers against false, malicious, abusive claims while still ensuring transparency and openness in government.”

WHAT IS SECTION 50-A?

Section 50-a of the New York State Civil Rights Law permits law enforcement officers to refuse disclosure of personnel records used to evaluate performance toward continued employment or promotion. The exemption was adopted in 1976 in order to prevent criminal defense lawyers from using such records in cross examination of police witnesses during criminal prosecutions. Advocates of changes to Section 50-a say the exemption has since been expanded in the courts to allow police departments to withhold from the public virtually any record that contains any information that could conceivably be used to evaluate the performance of a police officer, even when it is known misconduct has occurred.

WHAT DOES THE REPEAL BILL DO?

In addition to repealing section 50-a of the Civil Rights Law, A.10611/S.8496 also amends the state Freedom of Information Law to establish new definitions related to the terms “law enforcement disciplinary record,” “law enforcement disciplinary proceeding,” “law enforcement agency,” and “technical infraction.”

When responding to a FOIL request a law enforcement agency would be required to redact from law enforcement disciplinary records:

¯ medical history information of police officers, peace officers, firefighters and firefighter/paramedics, unless the records were obtained during the course of an agency’s investigation of the person’s misconduct and is relevant to the disposition of the investigation;

¯ home addresses, personal phone numbers and email addresses of police officers, peace officers, firefighters and firefighter/paramedics or a family member or the complainant or another person in the disciplinary record;

¯ social security numbers; and

¯ the use of Employee Assistance Program, mental health services or substance abuse by police officers, peace officers, firefighters and firefighter/paramedics unless its use is mandated by a disciplinary proceeding that may otherwise be disclosed.

A law enforcement agency may also redact technical infractions from law enforcement disciplinary records. Technical infractions are minor rule violations by a person employed by a law enforcement agency as a police officer, peace officer, or firefighter or firefighter/paramedic, solely related to the enforcement of administrative departmental rules that do not involve interactions with members of the public, are not of public concern, and are not otherwise connected to such person’s investigative, enforcement, training, supervision or reporting responsibilities.

A MISSED OPPORTUNITY?

Giglio agreed with his fellow Western New York Republicans in his criticism of the 50-a repeal legislation, including that the spate of legislation being passed in the state Legislature this week focused only on law enforcement.

“Hate is never excusable,” Giglio said. “Their actions are never excusable. But there is a way to go about it. I think to try to punish all police for what’s going on is way past that.”

Instead, Giglio recalled last year’s incident in which a debate over changing public assistance benefits resulted in charges of racism and use of racist language by Assemblyman Charles Barron, D-New York City, against Goodell. Assemblywoman Crystal Peoples-Stokes, D-Buffalo and Assembly majority leader, ended the debate by saying Barron’s charges were being discussed at the wrong time and that the Assembly should lead a conversation about race even if that conversation is uncomfortable. And, Giglio thinks Peoples-Stokes is the person to lead that discussion now.

“I was sitting there that day and I said to myself, ‘Joe, get up and say, ‘How about now?’ So now I’m going to say it,” Giglio said. “How about now. How about we sit in our chambers or put a task force together and finally talk this out. It doesn’t have to be over a bill. It doesn’t have to be over laws. It has to be all of us sitting there together deciding what’s best. I believe that our members are the best in the country. I believe we can come up with those answers. I truly do. This is not the way to do it. Half the time, one on one side, one on the other side criticizing everything somebody says if you don’t agree with it. So here’s my proposal. Let us get together. Let us find out that hate will never by justified. Let us move forward. As long as we have help we can keep on trying.”