Court: U.S. Court of Appeals for the Second Circuit
Date Filed: Oct. 29, 2020
Update: On Feb. 16, 2021, the U.S. Court of Appeals for the Second Circuit issued a non-precedential summary order affirming the district court’s denial in part of the unions’ requested preliminary injunction. Agreeing with a central argument in the Reporters Committee’s brief, the court wrote that “the NYPD cannot bargain away its disclosure obligations” under the state’s Freedom of Information Law.
Background: In June 2020, New York lawmakers repealed Section 50-a of New York’s Civil Rights Law, a controversial provision used to shield the misconduct records of police officers, firefighters and corrections officers from public scrutiny.
Shortly after the repeal, a group of firefighter and police unions sued the city to prevent the release of “non-final” and “unsubstantiated” allegations of misconduct. The unions argued that the records should not be released because the unions are in arbitration proceedings with the city regarding whether the release of these records would violate their collective bargaining agreements, or CBAs, and asked the court to prohibit release of the records so as not to render the arbitration moot.
The U.S. District Court for the Southern District of New York largely denied the unions’ request for a preliminary injunction that would prevent the release of records. However, the court granted the injunction with respect to a small subset of misconduct records, meaning that the unions will be permitted to continue arbitration over whether a provision in their CBAs effectively exempted those records from public disclosure under New York’s Freedom of Information Law.
Both the unions and Communities United for Police Reform, a nonprofit group that intervened in the suit, have appealed the district court’s order.
Our Position: The U.S. Court of Appeals for the Second Circuit should reverse in part and affirm in part the district court’s order to allow the release of all of the misconduct records at issue.
- Neither the unions nor the city possess the legal authority to bargain away the public’s right to access records under FOIL.
- Proactive release of law enforcement officers’ misconduct records, including through registries, will benefit the public.
- The city’s proactive release of misconduct records will allow for meaningful reporting regarding the abuse of power by public servants, a matter of abiding public concern.
Quote: “Members of the public were not parties to the Unions’ CBAs, and neither the Unions nor the City possess the authority to bargain away the public’s statutory right to access public records through FOIL. As such, the scope of that right cannot be modified or abridged through any agreement between the Unions and the City.”
Related: The Reporters Committee previously filed two friend-of-the-court briefs in this case. At the district court level, the Reporters Committee urged the court to deny the preliminary injunction sought by the unions. And in the Second Circuit, the Reporters Committee supported the New York Civil Liberties Union’s efforts to publish police misconduct records previously shielded by Section 50-a. In August, the appeals court denied the unions’ motion to block the NYCLU from publishing the records.
More recently, the Reporters Committee urged a New York trial court to deny Buffalo police and firefighters unions’ request to prevent the release of misconduct records. On Oct. 9, the trial court dismissed the unions’ claims, clearing the way for the release of records.
In February, the Reporters Committee filed a friend-of-the-court brief with the Illinois Supreme Court in City of Chicago v. Fraternal Order of Police, arguing that Chicago’s police union could not bargain away its obligations to comply with the state’s public records law. The state Supreme Court ultimately agreed, ruling in June that a provision in the union’s collective bargaining agreement with the city that called for the destruction of police disciplinary records more than five years old violated an “explicit, well-defined, and dominant public policy” in the state of Illinois.