A federal judge has sided with New York City’s police unions and temporarily blocked the de Blasio administration’s plan to disclose tens of thousands of newly available police disciplinary records.
“I believe there to be serious issues that transcend reputation, that affect employment, that affect safety,” Judge Katherine Polk Failla said during a conference call on Wednesday night, referring to officers whose disciplinary records would be made public.
Shortly after the state legislature's repeal of New York Civil Rights Law section 50-A in June, the de Blasio administration announced that they would release two databases containing police disciplinary records: one from the Civilian Complaint Review Board, and one from the NYPD.
The Mayor’s Office had initially said that both databases would contain records on complaints that were not yet adjudicated or “unsubstantiated,” a term that does not necessarily imply innocence, but merely the inability to prove guilt. Government transparency advocates argue that because the vast majority of complaints against the police go unadjudicated, the ability to see these records is crucially important for police accountability, which is why the state law was designed to permit their release.
The police unions contended that the public should not be able to see “unsubstantiated” complaints, and asked for a temporary restraining order so the matter can be litigated.
Judge Failla agreed, and blocked the City from releasing any information related to “complaints that are unsubstantiated or unfounded, those in which the officer has been exonerated, those that are pending, non-final.” The restraining order is in effect until at least August 18th.
The decision followed nearly an hour and a half of oral arguments between Anthony Paul Coles, an attorney representing the coalition of police and other unions, and Dominique Saint-Fort and Rebecca Gibson Quinn, attorneys for the City’s Law Department.
Throughout the proceedings, Saint-Fort of the Law Department repeatedly contradicted previous statements about which records the NYPD was planning to publish online and seemed to suggest that the NYPD’s planned release would be more limited than what the de Blasio administration had promised. Coles attacked these “inconsistencies,” which he successfully used to argue that the unions should get discovery records on the city’s internal communications about the planned releases.
(The Law Department did not immediately respond to a request for clarification on what records the NYPD had planned to release on a city portal, or a request to comment on the ruling.)
During the hearing, attorneys for the Law Department acknowledged that the CCRB had already released an Excel spreadsheet with 81,000 records related to alleged officer misconduct to the New York Civil Liberties Union, after the group filed a Freedom of Information request.
Coles, the union attorney, claimed he was shocked by the public records disclosure and suggested that the speedy release was a “suspicious” maneuver made around the time that unions were in talks with the city about their position on a release.
But Saint-Fort argued that the city had never given the unions assurances about what would be released and provided a timeline demonstrating that the organization’s receipt of the records took place before the filing of the unions’ lawsuit. The city had previously referred to the FOIL release in a court filing five days before the hearing.
In her oral ruling, Judge Failla echoed the union coalitions’ arguments, claiming that the disclosure might have “a deleterious effect on arbitration.”
“I was reminded of metaphors of horses and barns and bells that have been rung,” Judge Failla said, declaring that if she didn’t issue a restraining order on these records, “it would seem to me that the case is over.”
Judge Failla also ordered the NYCLU not to release the records and to push others with whom it had already shared the records to do the same.
“I am ordering you not to disclose those materials any further than you have internally or externally, and I am ordering you to advise...to whom you have disclosed them to not disclose them further,” Judge Failla said.
The order led to a tense exchange between Judge Failla and Christopher Dunn, the NYCLU’s legal director. The unions did not sue the NYCLU, Dunn noted, so the court, he said, has “no jurisdiction over us whatsoever.” He said he could not immediately submit to such a demand.
Judge Failla seemed to take this refusal personally, admonishing Dunn for using the expression “with all due respect” and claiming that she had determined that the NYCLU was acting “in concert” with the city, and thus was subject to her order.
“I’m less interested in Mr. Dunn’s [FOIL] request, I am trying to figure out how the CCRB broke land speed records to provide an answer to it,” Judge Failla quipped.
“It is inconceivable that a court would block us from making it public. We vehemently disagree with the court’s order, and will contest it immediately,” NYCLU Executive Director Donna Lieberman said in a statement. “For too long, New Yorkers have remained in the dark about officers accused of misconduct, the outcomes of investigations, and what discipline officers faced, if any. With the repeal of section 50-A of the civil rights law, the state legislature cleared the way to lift the shroud of secrecy that has shielded police wrongdoing from public view. It is imperative that this information is released as soon as possible, and we will continue to fight in court until it is.”
Reached by phone, a member of Judge Failla’s chambers staff declined a request to have the judge comment on the hearing.
Hank Sheinkopf, a spokesperson for the police unions, said, “The battle to protect the safety and due process rights of public safety officers and police goes forward.”
The judge ordered a limited release of discovery materials, clarifying what records the NYPD planned on releasing, and how the CCRB came to release records to the NYCLU, but said she would be willing to expand it depending on what the parties found.
The temporary restraining order on the release of records will extend till August 18th when the parties meet again for an injunction hearing.
City attorneys also told the court that the CCRB is currently publishing the names of NYPD officers accused of misconduct and information related to their departmental trials, which are public. Judge Failla ordered the City to tell the CCRB to remove the names immediately. (Shortly after this story was published, the information was removed.)