Despite having loudly branded itself a beacon of progressive values, in many divisions of New York City’s government, accessing public records remains, as any reporter working here will tell you, difficult. The New York Police Department, which has been subject to scrutiny for its lack of compliance with the New York State Freedom of Information law, is the most notoriously secretive of all.
BuzzFeed News reporters Kendall Taggert and Mike Hayes spent six months digging through hundreds of leaked files—and thousands of pages of court documents—as part of an investigation into a disciplinary program called “dismissal probation,” a year-long probationary period that allows police officers guilty of sometimes egregious, fireable offenses, to keep their jobs on the force.
Between 2011 and 2015, at least 319 officers were found guilty of misconduct ranging from the use of excessive force to mouthing off to a superior. Some of the misconduct included driving under the influence, sexual harassment (in one case, an employee working at a school touched a female student on the thigh), and lying under oath. All were allowed to continue carrying out the duties of their job while on probation, including making arrests and testifying against defendants in court. Their disciplinary records, though, were kept confidential.
CJR talked to Taggert and Hayes about the reactions to the investigation, working with leaked documents, and what comes next. This following conversation has been edited for length and clarity.
What exactly is ‘dismissal probation?’
Hayes: Dismissal probation is an obscure penalty that the NYPD uses where they essentially tell the officer, “You are fired from the force,” and—this is a wonky term—, “We’re going to hold that firing in abeyance for a year and put you on probation.” It’s meant to give the officer a chance to clean up his or her act. You’re put on dismissal probation after you go through the disciplinary process. You agree that if you commit any misconduct during that year, even screwing something up in your memo book, you can be fired without due process from the department. The NYPD views it as a deterrent to future misconduct. We found in the story that they give it as a penalty to people who have done some pretty serious things.
When you are initially charged with misconduct, you have the chance to go through what looks a lot like civilian court. If someone in the public or a reporter knows about it, they can go down and watch your trial. Where it becomes less public or straight-up secret is when it comes time to dole out penalties [like dismissal probation]. That part is done completely in secret.
Taggert: The range of offenses is enormous. You have officers who have beaten people multiple times for no good reason, and on the flip side, you have officers found guilty of relatively minor stuff. This was one of the most interesting things, how arbitrary the penalties can be. The department does not have set penalties [for offenses], and that doesn’t work well for the public or for the officers. All the officers that we wrote about who got dismissal probation were found guilty in the internal trial court at police headquarters. We don’t know how many pled and admitted guilt and how many were given dismissal probation while maintaining that they were not guilty.
And there’s a decades-old law that keeps the documents detailing who gets put on dismissal probation private. Why?
Hayes: We spent a lot of time finding a way to write about it so that someone who is not a lawyer could read the story. I refer to it as the “vegetables” section of the story. Section 50-a of the Civil Rights Law was passed in 1976, decades ago. It was originally intended to protect the officers in court from defense attorneys trying to dig into every little thing about their lives. The term ‘fishing expedition’ was thrown out quite a bit during the crafting of this law.
But it hasn’t worked that way. It’s not the officer’s address and the address of his or her family and medical records that’s being shielded in criminal court proceedings, it’s the stuff on his or her disciplinary record that could speak to the officer’s credibility.
Was the personal information of police officers being misused back then?
Taggert: It’s unclear in the wonky legislative documents that come out of that time period. [There was] talk about examples of medical records or home addresses [being publicized] but there aren’t a lot of concrete examples about what necessitated this law at the time.
Hayes: There was a heavy push from police unions at the time to get something like this passed.
Once the documents were leaked to you, how did you go about vetting their authenticity?
Taggert: We talked to as many people as we could. We made dozens of calls to officers, many of whom confirmed what we knew about their cases. Some officers had been sued in court and while the details of the punishment often aren’t in those [public files], the allegations matched up closely enough with the [NYPD] files that we came to believe the documents were real.
Hayes: This is the same approach defense attorneys and plaintiff’s attorneys in civil rights cases take today, because these records are sealed. It was interesting to find that we were doing the same thing that New Yorkers who want to find out about the officers involved in their cases.
It seems surprising that police officers would willingly talk to you about the documents that are otherwise kept secret.
Hayes: Part of the motivation of some officers to talk is that they view the system as retaliatory, so they felt they had a story to tell about what happened to them that isn’t told just by looking at the records.
Taggert: When you’re trying to get some to confirm a document, it helps if you phrase it as less of a question. We were calling and saying “Hi, I understand that you were disciplined for XYZ and I want to understand what happened.” A lot of the people we spoke to feel mistreated, and were probably partly motivated to talk for that reason.
Mistrust between the public and the police is obviously a perennial issue, especially in heavily policed communities. Do you see your findings as helping or hurting that fragile relationship?
Taggert: The public conversation since our story ran has underscored the need for the NYPD to explain what it is doing so people can trust the system—the current way it is handled doesn’t allow people to. The department has heard from officers who say that it needs to release more information for the officers themselves, so they understand what kind of conduct isn’t tolerated and so they believe the system is fair to them. So it’s not just for the community, but for the officers.
Hayes: I asked NYPD Commissioner James O’Neill at a press conference two days after our story ran if he was considering releasing more information [about dismissal probation] and he said they’re looking at what they can do. At that same conference, the commissioner and the mayor both expressed interest in the law changing. It was encouraging that they had read the story and were prepared to respond to it
What advice do you have for reporters working on stories that require unnamed sources?
Taggert: One of my favorite things about working at BuzzFeed is that we have a UK team—and they don’t have a strong FOIA law. They operate as though they will have to get everything leaked. Hanging out with them has made me think differently about my job here in the US. To some degree it’s about believing that you can get [documents that aren’t public]. When I pull up on these longer projects, I usually stop meeting and getting coffee with a whole range of people. I heard [a journalist] say you should always be meeting two to three people a week, unrelated to what you’re working on.
For FOIL [FOIA’s name in New York state], one of the things that was helpful for us was thinking about what other agencies would [have the documents]. If you can’t get them through the NYPD, who else might have the records? I’ve heard smart investigative reporters at [the nonprofit organization Investigative Reporters and Editors say when they start a story, they think about every public agency a company might touch, and target their requests across the board to gather as much information as possible, in all the ways.
What comes next in terms of follow-up?
Taggert: One of the next steps for us is getting a database up of officers who received penalties like this. Mike and I came across a number of threads while digging into this, from people affected by officers’ misconduct and from officers themselves.
Mike and I are hoping to get something we’ve been asking the police department for; it claims that [dismissal probation] has changed since 2015, which is the last period the records we had covered. We want to vet whether or not that’s the case.