Amd 1-a, Civ Rts L; amd 89, Pub Off L; amd 160.50, 160.55, 160.58 & 160.59, CP L
Excludes video camera recordings from cameras worn or used by police from being included as personnel records; makes certain records available to independent review boards investigating allegations of police or law enforcement misconduct.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A72
SPONSOR: Quart TITLE OF BILL:
An act to amend the civil rights law and the public officers law, in
relation to information included as personnel records; and to amend the
criminal procedure law, in relation to making certain records available
to independent review boards investigating allegations of police or law
enforcement misconduct
PURPOSE OR GENERAL IDEA OF BILL:
Clarifies that recordings made by body cameras worn by police officers,
among other recordings made by public safety officials, are not consid-
ered personnel records pursuant to section 50-a of the Civil Rights Law,
and are thus subject to the Freedom of Information Law (FOIL).
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: Section 50-a of the civil rights law is amended by adding a
new subdivision 5 that:
*Excludes recordings made of police officers, firefighters and other
public safety officials in the course of duty, including, but not limit-
ed to recordings made by body cameras worn by an officer, as well as the
metadata from those recordings, from protection as personnel records
under section 50-a of New York's Civil Rights Law.
*Redacts all identifying details of all persons in a publicly released
recording, including but not limited to facial features and voices.
*Maintains all existing rights litigants in a civil or criminal action
to access recordings or the metadata from those recordings.
*Maintains all existing rights to use recordings or the metadata from
those recordings for personnel decisions.
*Permits anyone who requests a recording, as specified in this subdivi-
sion, under FOIL to also request any agency records necessary to identi-
fy any officer in the recording.
Section 2: Section 50-a of the civil rights law is amended by adding a
new subdivision 2 that:
*Specifically defines the term "recording," as used in this chapter.
Section 3: Paragraph (c) of subdivision 2 of section 89 of the public
officers law is amended by:
*Stating that disclosure shall not be construed to constitute an unwar-
ranted invasion of personal privacy when identifying details redacted.
Section 4: Establishes that this act shall take effect immediately.
JUSTIFICATION:
Police body cameras, as well as other recording devices used by on-duty
public safety officials, provide protection for officers and citizens
alike. As the implementation of such recording devices continues, it is
important that current law keep pace with such technology. Section 50-a
of the Civil Rights Law effectively excludes personnel records from FOIL
requests. According to the Committee on Open Government, a broad inter-
pretation of the term personnel records could include body camera
footage, therefore preventing public disclosure of such recordings.
This bill clarifies that body camera recordings, among other recordings
made by public safety officials, are not considered personnel records
under section 50-a. Thus, this legislation ensures that body camera
recordings, as well as the metadata from such recordings, should be
subject to FOIL. By placing body camera recordings within the standard
FOIL process while also mandating the redaction of all identifying
details present in a given video, the bill balances the need for greater
transparency in the everyday encounters between police officers and
members of the public with a necessary commitment to privacy
protections.
PRIOR LEGISLATIVE HISTORY:
2019-2020: A1685 referred to Governmental Operations
2017-2018: A4268 referred to Governmental Operations
2015-2016: A8368 referred to Governmental Operations
FISCAL IMPLICATIONS:
TBD
EFFECTIVE DATE:
Immediately
STATE OF NEW YORK
________________________________________________________________________
72
2021-2022 Regular Sessions
IN ASSEMBLY(Prefiled)
January 6, 2021
___________
Introduced by M. of A. QUART, BICHOTTE, KIM, DILAN, BENEDETTO, EPSTEIN,
GOTTFRIED, REYES, HUNTER, HYNDMAN, JOYNER -- read once and referred to
the Committee on Governmental Operations
AN ACT to amend the civil rights law and the public officers law, in
relation to information included as personnel records; and to amend
the criminal procedure law, in relation to making certain records
available to independent review boards investigating allegations of
police or law enforcement misconduct
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of section 1-a of the civil rights
2 law is designated subdivision 1 and a new subdivision 2 is added to read
3 as follows:
4 2. The term "recording", as used in this chapter, shall mean an
5 original photographic record, disc, tape, audio or video cassette, wire,
6 film, hard drive, flash drive, memory card or other data storage device
7 or any other medium on which such sounds, images, or both sounds and
8 images are or can be recorded or otherwise stored, or a copy or reprod-
9 uction that duplicates in whole or in part the original.
10 § 2. Paragraph (c) of subdivision 2 of section 89 of the public offi-
11 cers law, as amended by section 11 of part U of chapter 61 of the laws
12 of 2011, is amended to read as follows:
13 (c) Unless otherwise provided by this article, disclosure shall not be
14 construed to constitute an unwarranted invasion of personal privacy
15 pursuant to paragraphs (a) and (b) of this subdivision:
16 i. when identifying details are deleted or redacted;
17 ii. when the person to whom a record pertains consents in writing to
18 disclosure;
19 iii. when upon presenting reasonable proof of identity, a person seeks
20 access to records pertaining to him or her; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01631-01-1
A. 72 2
1 iv. when a record or group of records relates to the right, title or
2 interest in real property, or relates to the inventory, status or char-
3 acteristics of real property, in which case disclosure and providing
4 copies of such record or group of records shall not be deemed an unwar-
5 ranted invasion of personal privacy, provided that nothing herein shall
6 be construed to authorize the disclosure of electronic contact informa-
7 tion, such as an e-mail address or a social network username, that has
8 been collected from a taxpayer under section one hundred four of the
9 real property tax law.
10 § 3. Paragraph (d) of subdivision 1 of section 160.50 of the criminal
11 procedure law, as amended by chapter 449 of the laws of 2015, is amended
12 to read as follows:
13 (d) such records shall be made available to the person accused or to
14 such person's designated agent, and shall be made available to (i) a
15 prosecutor in any proceeding in which the accused has moved for an order
16 pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
17 enforcement agency upon ex parte motion in any superior court, or in any
18 district court, city court or the criminal court of the city of New York
19 provided that such court sealed the record, if such agency demonstrates
20 to the satisfaction of the court that justice requires that such records
21 be made available to it, or (iii) any state or local officer or agency
22 with responsibility for the issuance of licenses to possess guns, when
23 the accused has made application for such a license, or (iv) the New
24 York state department of corrections and community supervision when the
25 accused is on parole supervision as a result of conditional release or a
26 parole release granted by the New York state board of parole, and the
27 arrest which is the subject of the inquiry is one which occurred while
28 the accused was under such supervision, or (v) any prospective employer
29 of a police officer or peace officer as those terms are defined in
30 subdivisions thirty-three and thirty-four of section 1.20 of this chap-
31 ter, in relation to an application for employment as a police officer or
32 peace officer; provided, however, that every person who is an applicant
33 for the position of police officer or peace officer shall be furnished
34 with a copy of all records obtained under this paragraph and afforded an
35 opportunity to make an explanation thereto, or (vi) the probation
36 department responsible for supervision of the accused when the arrest
37 which is the subject of the inquiry is one which occurred while the
38 accused was under such supervision, or (vii) an independent review board
39 investigating allegations of police or law enforcement misconduct, where
40 such records pertain to the allegations being investigated; and
41 § 4. Paragraph (d) of subdivision 1 of section 160.55 of the criminal
42 procedure law, as amended by chapter 449 of the laws of 2015, is amended
43 to read as follows:
44 (d) the records referred to in paragraph (c) of this subdivision shall
45 be made available to the person accused or to such person's designated
46 agent, and shall be made available to (i) a prosecutor in any proceeding
47 in which the accused has moved for an order pursuant to section 170.56
48 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex
49 parte motion in any superior court, or in any district court, city court
50 or the criminal court of the city of New York provided that such court
51 sealed the record, if such agency demonstrates to the satisfaction of
52 the court that justice requires that such records be made available to
53 it, or (iii) any state or local officer or agency with responsibility
54 for the issuance of licenses to possess guns, when the accused has made
55 application for such a license, or (iv) the New York state department of
56 corrections and community supervision when the accused is under parole
A. 72 3
1 supervision as a result of conditional release or parole release granted
2 by the New York state board of parole and the arrest which is the
3 subject of the inquiry is one which occurred while the accused was under
4 such supervision, or (v) the probation department responsible for super-
5 vision of the accused when the arrest which is the subject of the
6 inquiry is one which occurred while the accused was under such super-
7 vision, or (vi) a police agency, probation department, sheriff's office,
8 district attorney's office, department of correction of any municipality
9 and parole department, for law enforcement purposes, upon arrest in
10 instances in which the individual stands convicted of harassment in the
11 second degree, as defined in section 240.26 of the penal law, committed
12 against a member of the same family or household as the defendant, as
13 defined in subdivision one of section 530.11 of this chapter, and deter-
14 mined pursuant to subdivision eight-a of section 170.10 of this title,
15 or (vii) an independent review board investigating allegations of police
16 or law enforcement misconduct, where such records pertain to the allega-
17 tions being investigated; and
18 § 5. Subdivision 6 of section 160.58 of the criminal procedure law, as
19 added by section 3 of part AAA of chapter 56 of the laws of 2009, is
20 amended to read as follows:
21 6. Records sealed pursuant to this subdivision shall be made available
22 to:
23 (a) the defendant or the defendant's designated agent;
24 (b) qualified agencies, as defined in subdivision nine of section
25 eight hundred thirty-five of the executive law, and federal and state
26 law enforcement agencies, when acting within the scope of their law
27 enforcement duties; or
28 (c) any state or local officer or agency with responsibility for the
29 issuance of licenses to possess guns, when the person has made applica-
30 tion for such a license; or
31 (d) any prospective employer of a police officer or peace officer as
32 those terms are defined in subdivisions thirty-three and thirty-four of
33 section 1.20 of this chapter, in relation to an application for employ-
34 ment as a police officer or peace officer; provided, however, that every
35 person who is an applicant for the position of police officer or peace
36 officer shall be furnished with a copy of all records obtained under
37 this paragraph and afforded an opportunity to make an explanation there-
38 to[.]; or
39 (e) an independent review board investigating allegations of police or
40 law enforcement misconduct, where such records pertain to the allega-
41 tions being investigated.
42 § 6. Subdivision 9 of section 160.59 of the criminal procedure law, as
43 added by section 48 of part WWW of chapter 59 of the laws of 2017, is
44 amended to read as follows:
45 9. Records sealed pursuant to this section shall be made available to:
46 (a) the defendant or the defendant's designated agent;
47 (b) qualified agencies, as defined in subdivision nine of section
48 eight hundred thirty-five of the executive law, and federal and state
49 law enforcement agencies, when acting within the scope of their law
50 enforcement duties; or
51 (c) any state or local officer or agency with responsibility for the
52 issuance of licenses to possess guns, when the person has made applica-
53 tion for such a license; or
54 (d) any prospective employer of a police officer or peace officer as
55 those terms are defined in subdivisions thirty-three and thirty-four of
56 section 1.20 of this chapter, in relation to an application for employ-
A. 72 4
1 ment as a police officer or peace officer; provided, however, that every
2 person who is an applicant for the position of police officer or peace
3 officer shall be furnished with a copy of all records obtained under
4 this paragraph and afforded an opportunity to make an explanation there-
5 to; or
6 (e) the criminal justice information services division of the federal
7 bureau of investigation, for the purposes of responding to queries to
8 the national instant criminal background check system regarding attempts
9 to purchase or otherwise take possession of firearms, as defined in 18
10 USC 921 (a) (3)[.]; or
11 (f) an independent review board investigating allegations of police or
12 law enforcement misconduct, where such records pertain to the allega-
13 tions being investigated.
14 § 7. This act shall take effect immediately.
