ALBANY — State Senator George Borrello and Chautauqua County District Attorney Patrick Swanson are speaking out against the New York Senate’s recent repeal of the 50-A Statute in the state’s Civil Rights Law.
The 50-A statute previously allowed police departments to shield disciplinary records of officers.
Borrello this week critiqued the repeal after he said the Town of Cuba was recently issued a Freedom of Information Act request by an organization named MuckRock stating that they were seeking to obtain copies of all police personnel files dating back to the 1970’s.
During an interview with WNYNewsNow, Borrello said that the repealing was a “knee-jerk reaction” that was politically motivated in the New York State Legislature.
“Not only are these records unnecessary to be harvested in this manner, it’s going to create a huge financial burden for these already strained municipalities,” Borrello said. “You’re going to be asking for the records of, in many cases, police officers that may have been deceased for decades.”
“This is just an unnecessary burden that ultimately is going to create fertile ground for frivolous lawsuits, ultimately at the tax papers expense and will do absolutely nothing, and I mean nothing, to change the current situation when it comes to transparency and justice.”
Swanson, in a separate interview with WNYNewsNow, said he “is not sure what it (the repealing) solves.”
“What you have in police personnel files is the number of complaints, many of them unfounded, some of them substantiated,” Swanson said. “Releasing the contents of a personnel file with a bunch of complaints that were frivolous and not supported by facts, really doesn’t accomplish much.”
“What are we accomplishing with this legislation other than smearing officers with unjust claims?”
Borrello was unable to provide specific projections on the costs that he cited because of what he says is the “poor manor that the legislation was rushed through.” The Senator, however, says that municipalities could still face legal ramifications should parts of their records be missing even if they provide as much information as possible in a “good faith effort.”
“Now, you’re going to have these unscrupulous trial attorneys that are going to look for these municipalities that have records that are missing and they’re going to say, ‘Yes, we realize that you don’t have them but we are still going to take you to court and sue you,'” Borrello said. “In this case, even though the municipality is doing what it’s supposed to do and rightly so, it’s costly to defend themselves.” He adds that municipalities will end up paying a heavy settlement to prevent further court litigation.
WNYNewsNow also asked Swanson if the repealing could have an affect on the prosecution in future cases. He says there wouldn’t “necessarily” be one.
“If there’s an unsubstantiated claim that’s maybe in an officer’s background, it shouldn’t be information a jury ever hears because there’s no truth to that claim,” Swanson said. “When you’re questioning a witness about their credibility, and an officer shouldn’t be treated any differently than everything else, if somebody made some claim that’s proven to be false in the past, that information isn’t something the jury should hear.”
Swanson says his office could potentially need to file motions blocking juries from hearing unsubstantiated claims, but his “hope is that defense counsel wouldn’t seek to use unsubstantiated claims.”
“I don’t see (a wide sweeping affect),” Swanson said. Swanson says Chautauqua County has a “good group of local police officers.”
Citizens have criticized Borrello’s stance on multiple social media platforms, stating that the Sunset Bay native and others will similar viewpoints on the 50a Statute are promoting a lack of accountability and transparency from law enforcement. Borrello, however, says that is not the case.
“I know that is the talking point for people. The reality is that there is no other profession where unsubstantiated claims remain in your file,” Borrello said. “This is true for teachers, doctors, lawyers, and so on, but this isn’t true for law enforcement and our first responders. We have the right to due process, and we have the basic Constitutional right that you’re innocent until proven guilty, and in fact, that right has been the subject of many of the other criminal justice reforms when it comes to bail and so forth…”
“With all of that being said, we are not able to give justice to people if we are releasing these records that have false and unsubstantiated claims still in them.”
Borrello says he and other members of the Senate challenged the repeal during a debate, asking why the legislative body didn’t chose to expunge or redact unsubstantiated claims from the record.
“The answer was, ‘Just because it was unsubstantiated, doesn’t mean it didn’t happen,'” Borrello said. “My God, that’s a basic and fundamental right that you’re throwing out the window. We’re saying we don’t care if it wasn’t proven, we are going to allow this record to be used against someone and tarnish them, which is outrageous. It’s a basic violation of our fundamental rights as Americans.”
Borrello adds that those with lengthy criminal arrest records can’t have them used against them in court when they’re charged with another crime.
“We protect the criminals of society with that same basic Constitutional right that we are taking away from our law enforcement officers,” Borrello said. “It’s wrong, it’s unjust, and that’s why I stand firmly on my position.”