A federal appeals court on Tuesday rejected an effort by unions representing cops and other first responders to keep misconduct records secret — but it’s not clear when the city will make the documents public.
The Second Circuit Court of Appeals ruled against the Police Benevolent Association (PBA) and other unions that had argued releasing unsubstantiated and non-final findings on misconduct allegations would endanger uniformed personnel and ruin their future job prospects.
Citing the practices of other states that routinely release misconduct histories, the appeals court found the unions had provided no evidence of irreparable harm to officers and backed a lower court’s order to issue the records.
“Despite evidence that numerous other states make similar records available to the public, the unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities,” the three-judge appeals panel wrote.
And the judges noted that public disclosure is imperative for targets of police misconduct, writing, “Delay for victims unable to obtain information about the status of their complaints is itself costly both for them and for various other stakeholders in the criminal justice system.”
The fight over misconduct records reignited last May after the death of George Floyd and other Black Americans at the hands of police spurred widespread racial justice demonstrations. Albany legislators moved in June to make misconduct records public by repealing a law known as 50-a.
The law, put on the books at the urging of police unions in the 1970s, barred release of any misconduct records. Shortly after the law was repealed, the unions went to state court and then to federal court to shut down disclosure of most of the documents.
Mayor Bill de Blasio has said he intends to make all of these records public, but paused that effort when the unions filed suit.
As of late Tuesday, that pause remained in effect — keeping from New Yorkers records that include, as THE CITY reported in August, details of years-old allegations against Police Commissioner Dermot Shea and his predecessor, James O’Neill.
The Second Circuit ruling addressed only a preliminary injunction sought by the unions and rejected by the lower court. The unions’ full lawsuit remains pending.
Responding to the ruling, de Blasio issued a brief statement Tuesday noting that City Hall was seeking “clarity from the court regarding when these records can be released.”
“Good riddance to 50-a,” he added. “For the past seven years, we’ve fundamentally changed how we police our city, strengthening the bonds between communities and the officers who serve them. Now, we can go even further to restore accountability and trust to the disciplinary process.”
The agency that investigates police misconduct, the Civilian Complaint Review Board (CCRB), had started releasing records in June after a lower court initially ruled against the unions, but halted disclosures when the coalition of labor organizations appealed.
CCRB Chair Fred Davie issued a statement Tuesday saying, “I look forward to receiving guidance as to when our agency can proceed with these public disclosures and to this new transparency promised by the repeal of 50-a.”
The data held by the CCRB includes thousands of allegations — some of which the board found to be substantiated. But many more cases were deemed unsubstantiated, meaning the investigation neither proved nor disproved the allegations.
‘A Right to Know’
In June, ProPublica posted complaint history summaries for all current cops with at least one substantiated complaint. The New York Civil Liberties Union put up data on all substantiated and unsubstantiated complaints going back decades.
Those records, however, provided only skeletal information on accusations against specific cops, and did not reveal details of the incidents that led to the complaints.
CCRB began releasing the more detailed reports to THE CITY and other media outlets for a brief period before the union lawsuit shut down disclosure of all misconduct records, both substantiated and unsubstantiated.
THE CITY used those documents, obtained under the state’s public records law, to report on several NYPD uniformed members with long and disturbing histories of abuse of authority.
On Tuesday, the unions vowed to continue their fight with the underlying case, and urged the city to apply exemptions in the state Freedom of Information Law (FOIL) allowing the withholding of information that would violate a person’s right to privacy or compromise their safety.
“Today’s ruling does not end our fight to protect our members’ safety and due process rights,” Hank Sheinkopf, a spokesperson for the coalition of unions, wrote in an emailed statement.
“The FOIL law provides exemptions that allow public employers to protect employees’ safety and privacy,” he added. “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.”
The CCRB was already applying all relevant exemptions to FOIL when it released material in June, a fact noted by the federal appeals court.
Joo-Hyun Kang, director of Communities United for Police Reform, wrote that the appeals court ruling rejected what she termed the unions’ “baseless claims and fear-mongering.”
The decision, she said, “affirms that the public has a right to know when police brutalize or sexually harass New Yorkers and escape discipline.”
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