NEW ROCHELLE, NY — After repeatedly promising Talk of the Sound it would produce disciplinary records for the New Rochelle police officer who shot and killed a 24-year old father of two on June 5th, the City of New Rochelle admits it stalled for a week then blocked the release of those records citing a Judge’s decision issued almost a week after the records were available.
The City is now claiming it cannot turn over the records until a lawsuit filed in New York City is resolved. There is no telling how long the case could be tied up in Federal court – days, months, even years.
In response to a Freedom of Information request filed on June 12th, minutes after Governor Andrew Cuomo repealed Civil Rights Law §50-a, a long-standing statute that prohibited the disclosure of police disciplinary records, a City of New Rochelle employee contacted Talk of the Sound on Thursday July 9th to schedule a meeting at City Hall on Tuesday July 14th at 10:30 a.m. where she said the records would be provided. The City has never required or even requested an in-person meeting before turning over public records under a FOIL request.
On Monday evening that meeting was cancelled and a new meeting, either on Wednesday or Thursday, was offered. A meeting on Wednesday was requested. On Tuesday, after another call, the City said the meeting would not take place on Wednesday and rescheduled the Tuesday meeting for Thursday July 16th at 2:30 pm. On Wednesday the City rescheduled the meeting again — for 2 pm Thursday.
At 12:21 pm on Thursday July 16th, City Manager Charles B. Strome sent an email to Talk of the Sound cancelling the meeting and stating that the City would not turn over the records:
Regarding your FOIL request:
As you may know, a temporary restraining order has been granted in New York City that bars the release of disciplinary records of police officers. This was granted yesterday. The suit has now been removed to the Southern District of New York Federal Court, which, as you know, includes Westchester County. Considering this, our counsel has advised us not to release Officer McKenna’s records at this time, due to the uncertainty surrounding this issue. We were fully prepared to release them before this came up, and will do so in the future if the legal issues change or become clarified. I apologize for any inconvenience and am cancelling our meeting today.
That said, we believe we can legally share the following facts, based on our review of the officer’s history. In his five years on the job, Officer McKenna was never accused of, nor found to have used, excessive force, nor did he ever draw his gun in the line of duty before the June 5 shooting. We hope this is helpful.
In our response, we stated:
As far as your statement about McKenna, (we are) not going to credit one iota of a selective characterization of records that were improperly denied…under FOIL. What (we) will do is give more credence to derogatory claims made about McKenna from people in the community and note as often as possible that the City and the New Rochelle Police Department ILLEGALLY withheld McKenna’s disciplinary records.
Strome was referring to a Temporary Restraining Order issued by State Supreme Court Judge Carol Edmead which “bars the city from public releasing any disciplinary records of NYPD officers, firefighters and correction officers that have been not yet been substantiated”.
“Edmead issued the stay against the release of any unsubstantiated records while the case gets transferred from state to federal court.”
City officials have since admitted their purpose in cancelling the Tuesday meeting was to wait for a ruling on the motion before Judge Edmead without disclosing that reason to Talk of the Sound until after the ruling. This despite a New York State law which required the immediate production of McKenna’s disciplinary records as early as July 9th.
The City of New Rochelle illegally withheld McKenna’s records for a week while lying about the reason they repeatedly rescheduled meetings to turn over the records then retroactively justified denying a lawful public records request based on the Edmead ruling.
If the plaintiffs in New York City, led by the NYPD PBA, are successful, McKenna’s disciplinary records may now never see the light of day.
The goal of the plaintiffs in the case is to limit the release of records in two ways: (1) release only disciplinary records that have been substantiated; (2) exclude any records where the accused officer has signed a settlement agreement.
These two criteria would effectively exclude from release almost every disciplinary record in New York State because any complaint that was substantiated would almost always result in a settlement agreement. More troubling is that the question of whether a complaint is substantiated is left to police officers investigating other police officers — all members of the same unions who filed the Federal lawsuit.
As the City of New Rochelle website explains, the police investigate themselves:
External complaints are complaints about police conduct that are generated by individuals who are not members of the Department. These types of complaints normally involve allegations of improper conduct on the part of police employees or questionable department procedures. Regardless of the source, seriousness, or apparent lack of seriousness of the complaint, each complaint is thoroughly investigated by the IAU supervisor.
Likewise, the police decide whether or not to offer the officer a settlement agreement.
In short, the position of the PBA and other unions in New York City — and New Rochelle — entirely defeats the purpose of the Governor’s decision to repeal 50-a and bring transparency to the disciplinary records of police officers.
In the matter of McKenna’s disciplinary records, City officials have already opened the door to the release of the records by repeatedly disclosing information about those files to members of the public.
On June 6th, prior to a press conference on the officer-involved shooting of Kamal Flowers by Alex McKenna, New Rochelle Mayor Noam Bramson, City Manager Strome and members of the NRPD Senior Command held an invitation-only meeting with members of the public, primarily community leaders and Black Clergy members. During that meeting, according to multiple sources who were present, Mayor Noam Bramson and Deputy Police Commissioner Robert Gazzola both stated that McKenna had several disciplinary complaints in his personnel file. In his email to Talk of the Sound on July 16 Strome described McKenna’s disciplinary records claiming there were no “excessive force” complaints against McKenna in the records and no records that McKenna ever drew his service weapon in the line of duty prior to shooting and killing Kamal Flowers on June 5th.
“By repeatedly, selectively releasing information from McKenna’s disciplinary records, the City has effectively waived any claim to confidentiality,” said attorney Richard St. Paul who is representing the Flowers family and Isa Muhammad, the driver of the vehicle that was pulled over by McKenna and another office just prior to the shooting.
UPDATE 7/23: on July 21, Police Commissioner Joseph Schaller and New Rochelle Police Deputy Commissioner Robert Gazzola, presented a Special Report on the New Rochelle Police Department July 2020 to the New Rochelle City Council.
The report includes on page 104 a memorandum dated July 2, 2020 from the Law Office of Vincent Toomey which represents the New Rochelle Police Department which states:
With the repeal of Section 50-a, law enforcement personnel records…the records are presumed to be accessible in accordance with the Freedom of Information Law (“FOIL”) and may only be withheld if they fall within one of the statutory exceptions. Any record that is not exempt must be disclosed. It appears that the repeal of 50-a applies to existing and future records…
The Toomey memo serves to highlight concerns that PO Alec McKenna’s records were deliberately, illegally withheld to protect McKenna and his superiors and the NRPD as a whole knowing full well their existed a presumption McKenna’s records were subject to our FOIL request of June 12th. Further, our request was not properly acknowledged within 5 days and records were not produced or denied within the maximum time allowed without requesting more time which further denied me the opportunity to appeal the denial to the head of agency. No claim was ever made that the records were not subject to FOIL based on exemptions in the Public Officers Law.
In short, the City of New Rochelle and New Rochelle Police Department have made a mockery of the New York State Freedom of Information Law and did so knowing their outside counsel advised then the records must be produced subject to a lawful FOIL request.
We continue to demand immediate production of the records requested on June 12 for PO Alec McKenna.