A little-noticed case in an obscure New York City court has become the focus of a legal effort by the correction officers’ union to keep secret the identity and disciplinary histories of guards at city jails, including Rikers Island, where the city and the federal government are cracking down on widespread abuse by officers.
The case concerns Aubrey Victor, a guard who was caught on video repeatedly kicking a 16-year-old inmate in the face as he lay on the floor. Jail officials deemed the use of force excessive and potentially deadly. Normally, details of the 2011 case would not have become public because of a uniquely restrictive state law that shields the personnel records of law enforcement officers, including guards.
But Victor appealed the department’s findings, and once he did, his case went to a court that is unencumbered by the state’s secrecy rules: New York City’s Office of Administrative Trials and Hearings. The proceedings in this court are public record, and it’s where the majority of disciplinary hearings for city employees occur. In Victor’s case, a city administrative judge ruled in 2015 he should be fired, citing an earlier incident in which Victor was suspended for kicking another young inmate in 2004. The published ruling included Victor’s name, disciplinary record and details about the earlier beating. Victor was fired in June.
Victor’s case and reports about other guards have been available for years on the court’s website, offering a rare glimpse of misconduct at Rikers and fueling news accounts in the past year about widespread abuse. But now, union leaders hope to bar the release of officer’s names and disciplinary information. Doing so, they say, would grant them the same confidentiality afforded the city’s police.
In July, lawyers for the correction officers’ union filed a petition in State Supreme Court arguing that Section 50-a of New York State’s civil rights law, which makes law enforcement records confidential (and is one of the most extreme policies of its kind) should be extended to records about corrections officers that are now published by the city’s administrative court.
Norman Seabrook, president of the New York City Correction Officers Benevolent Association, said keeping court reports about officers private is necessary for their safety. “Today’s increased social media climate, coupled with the rise in gang activity in our jails, necessitates our taking this action now to protect our officers, their families and their loved ones from potential retaliatory action,” he said in a statement.
The New York City law department declined to answer whether or not the city will defend the court against the union’s efforts to limit the publication of decisions about city correction officers, including their names and work history. “[W]e are reviewing the issues in this pending matter,” according to a department representative, Nick Paolucci. Officials of the administrative court also declined to comment.
Section 50-a was adopted in 1976 and initially prohibited access only to personnel and misconduct records of police officers. It was intended to prevent lawyers from using public records laws to gather information to use against police witnesses during cross-examination in criminal trials. The law was eventually expanded to include corrections officers, peace officers and firefighters. Over the years, courts and municipalities have widened their interpretation of what can be considered confidential under the law.
With Victor’s case, lawyers for Rikers’ unionized officers are hoping to further expand that interpretation to include decisions published by the court. Seabrook, the union president, said making the identities of officers confidential in court documents would merely grant guards the same protections enjoyed by the city’s police department. “We have always maintained that our officers should be treated the same and have the same expectation of privacy as other law enforcement officers working in New York City – including NYPD officers, whose reports are not made public.”
New York City police officers seeking to challenge disciplinary findings can appeal, but unlike city correction officers, police administrative trials are handled internally, and therefore, are protected from disclosure by 50-a. Specifics about the disciplinary cases for corrections officers who work for New York state are also protected from public view because that trial process is internal, as well.
The legal battle caused by the Victor case comes as renewed attention is focused on the state’s confidentiality law. In July a judge in Manhattan ordered the city to release data about findings of misconduct substantiated against the officer who used a chokehold on Eric Garner, the Staten Island man who died after the police tried to arrest him for illegally selling cigarettes. The records were held by the Civilian Complaint Review Board, an independent oversight agency for city police. It was a noteworthy loss for the city’s law department, which has long held that these records were protected under state law. The city has appealed.
Administrative Law Judge Faye Lewis first rejected the union’s attempt to shield correction officers’ names in February, arguing that New York’s statute specifically protects records “under the control” of a department like “a department of correction,” but does not apply to the court because it is an independent city agency. It is that ruling that the corrections officers’ union has appealed.
Robert Freeman, executive director of the Committee on Open Government, a New York state agency that advises government on privacy matters, has called for the Legislature to repeal Section 50-a repeatedly since 2010. Bills have been introduced in the state legislature but haven’t gained traction. Freeman said repealing the law would bring more accountability to law enforcement, a job that involves interacting with citizens every day. “We hear about allegations of brutality, but people have few ways of knowing which corrections officers are doing their jobs perfectly well, and which may not be.”