NYPD Loses Appeal to Keep Disciplinary Records Under Lock & Key

Transparency advocates are lauding the outcome of the Second Circuit fight.

(Courthouse News photo / Josh Russell)

MANHATTAN (CN) — The New York City Police Department “cannot bargain away” its disclosure obligations, the Second Circuit ruled Tuesday as it rejected a bid by police and firefighter unions to block the publishing of thousands of officer misconduct records. 

Killing the appeal in an unsigned summary order, the three-judge panel blew through claims that greater transparency would risk officers’ safety.

“Many other states make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to police officers,” the federal appeals court wrote.

Pursuant to section 50a of the New York Civil Rights Law, police departments around the state have historically required a court order for the public to access any personnel performance records of police officers, firefighters and correction officers.

That opacity changed on June 12, 2020, when Governor Andrew Cuomo signed the state’s criminal-justice reform agenda “Say Their Name” into law, following nationwide civil rights protests sparked by the killing of George Floyd by Minneapolis police. 

Multiple unions had sued to block those changes, and their spokesman, Hank Sheinkopf, said Tuesday’s ruling will not stop the fight. 

“The FOIL law provides exemptions that allow public employers to protect employees’ safety and privacy,” Sheinkopf said in a statement, abbreviating the name of New York’s Freedom of Information Law. “We will continue to fight to ensure that New York City applies those exemptions to our members fairly and consistently, as they do for other public employees.” 

“Politics must not be allowed to relegate firefighters, police officers and corrections officers to second-class status,” he added.  

For much of the litigation, the unions have been unsuccessful. Even with a temporary restraining order after the repeal of 50-a last summer, the news outlet ProPublica managed to launch an online repository of NYPD records it had obtained through a FOIL request to an oversight branch of the city government called the Civilian Complaint Review Board.

Those records showed that roughly 4,000 out of the NYPD’s 36,000-member force had at least one substantiated complaint against them. Just 73 out of 3,000 allegations of force were substantiated, however, as of 2018, the most recent year when complete data were available.

“We continue to hope that there will be increasing transparency about allegations of police misconduct in New York City and their outcomes,” ProPublica’s deputy managing editor Eric Umansky said in a statement Tuesday afternoon.

In denying the unions an injunction last year, U.S. District Judge Katherine Polk Failla did make an exception for technical infractions where the officer is found not guilty.

The Second Circuit affirmed that outcome Tuesday, rejecting claims from police and firefighter unions that officers would suffer irreparable harm from release of the records, face increased danger on the job or be deprived of particular rights.  

“We fully and unequivocally respect the dangers and risks police officers face every day,” the panel wrote. “But we cannot say that the District Court abused its discretion when it determined that the unions have not sufficiently demonstrated that those dangers and risks are likely to increase because of the city’s planned disclosures.” 

Joo-Hyun Kang, director of Communities United for Police Reform, said the appeals ruling “affirms that the public has the right to know when police brutalize or sexually harass New Yorkers and escape discipline, in spite of police unions’ baseless claims and fearmongering.” 

“It’s critical that CPR intervened in this litigation because the city was willing to let police unions bargain against public transparency behind closed doors,” Kang said on Tuesday. “We’re pleased with the court’s decision to stop the unions’ attempted rollback of the repeal of 50a and are calling on the de Blasio administration to immediately publish the police misconduct database they announced and release all police misconduct and discipline information that New Yorkers have been rightfully demanding since the repeal of 50a last summer.” 

Molly Griffard, legal fellow with the Cop Accountability Project at The Legal Aid Society, also applauded Tuesday’s ruling.

“The decision rightfully rejects the police unions’ baseless attempts to undermine the Legislature’s decisive repeal of Police Secrecy Law 50-a and to continue hiding records of police discipline and misconduct,” she said.

In their appellate brief, the unions said records were ordered unsealed without “meaningful pre-disclosure review of the risks of irreparable harm to officers’ safety, privacy, and professional reputation.” 

The unions also argued that Failla had usurped the role of the police and fire unions’ arbitrator, designated by a collective bargaining agreement.

U.S. Circuit Judges Pierre Level, a Clinton appointee; Amalya Kearse, a Carter appointee; and Raymond Lohier, an Obama appointee, concurred in Tuesday’s outcome. 

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