Gawker and the New York Civil Liberties Union have filed a suit seeking records regarding an investigation conducted by the Nassau County Police Department on one of its' officers — an investigation the popular website alleges was prompted by Fox News journalist Bill O'Reilly who suspected his wife had an affair with the officer.
A New York judge ordered the police department to produce the requested records so they could be reviewed to determine whether the police department can withhold them under the personnel and privacy exemptions, according to Corey Stoughton, the NYCLU attorney who was present at Wednesday's hearing.
On Aug. 9, Gawker reporter John Cook filed a public records request with the police department for documents related to an internal affairs investigation on a police detective, whose name was not available in court filings. According to the police department's Aug. 18 response, the request was denied because the documents fall under the "personnel records" or privacy exemptions.
According to court documents, Cook believed the police department used public resources to conduct an internal investigation about the detective on behalf of O’Reilly, who believed the detective was "romantically involved" with his wife. Gawker published an article on Aug. 30 about the alleged investigation and that O'Reilly was, at that time, considering making a major donation to the police department.
Cook's records requests seeks three sets of information: records pertaining to two internal investigations; records of contacts between the O’Reillys and former police commissioner Lawrence Mulvey; and records of police contacts related to two residential addresses belonging to the O’Reillys.
Nassau County attorney John Ciampoli filed papers on Dec. 6 explaining that the records should be exempt under the personnel and privacy exemptions. Under New York law, “[all] personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency… shall be considered confidential.”
According to the filing, "the result of the internal affairs investigation was the issuance of an Internal Affairs Report, which became part of the personnel file of the detective," and therefore, exempt. Ciampoli added that the internal affairs investigation is designed to "re-examine public procedures without rose colored glasses," and is designed to allow the internal affairs unit to speak freely, without the internal criticisms being scrutinized by public opinion.
But according to Cook, the records will "shed light on the action of the police department and how they conduct themselves. If they (the records) demonstrate what I think, it will be a public service to expose it.”
Bob Freeman, executive director for the New York Committee on Open Government, said the state has made it clear that “our law is based on a presumption of access” and the courts take it seriously in ensuring that agencies give the maximum disclosure. However, according to Freeman, the law states that personnel records are confidential unless the officer gives consent or there is a court order to disclose the information. For this reason, “for better or worse, the court would have to say ‘no’,” said Freeman, who is not involved in the litigation.
However, the NYCLU argues the documents should be released with redactions for legitimately exempt portions.
According to the court papers filed by the NYCLU, the police department should release any call logs, correspondence, schedules of meetings or visits because they "merely document the fact of a call or meeting and do not contain any information of a personal nature."
The police department has argued that any correspondence between the parties would have to be exempt because they are private.
Stoughton said it's not the first time they have had problems getting records from the county.
“All over the state there has been a lag in agencies catching up to the reality of open records,” Stoughton said.