SDNY Allows NYPD Disciplinary Records to Be Made Public

Cleary Gottlieb, together with The Legal Aid Society (Legal Aid), filed amicus curiae briefs in the U.S. District Court for the Southern District of New York (SDNY) and the U.S. Court of Appeals for the Second Circuit (Second Circuit) on behalf of Legal Aid supporting the City of New York’s (City) public release of hundreds of thousands of police officer, firefighter, and correction officer disciplinary records following the repeal of NY Civil Rights Law Section 50-a (Section 50-a).

Section 50-a had been interpreted by New York state courts to broadly prevent public access to disciplinary records of police officers, firefighters, and correction officers. The law was repealed on June 12, 2020. The recent decisions in the SDNY and Second Circuit in favor of the release of the disciplinary records are monumental wins for government transparency and accountability.

On July 15, 2020, police officer, firefighter, and correction officer unions filed suit in the SDNY to prevent the City from publishing certain officer disciplinary records online. The case, Uniformed Fire Officers Association et al. v. de Blasio et. al. (20-cv-05441-KPF), is the first major case challenging the City’s ability to publish disciplinary records following the repeal of Section 50-a. The unions claimed that despite the full repeal of Section 50-a, the release of certain officer disciplinary records would violate the officers’ federal and state rights.

On August 21, 2020, Judge Katherine P. Failla largely rejected the unions’ request for a preliminary injunction. Judge Failla noted in her decision that “there are strong government interests in transparency and accountability,” especially given “the role of police officers in society, the unique responsibilities they carry, [and] the harms they are capable of inflicting on the public.” Judge Failla rejected each of the arguments presented by the unions with a very narrow exception for a class of records that she found arguably could be expunged by certain collective bargaining agreements. On August 24, 2020, the unions filed for interlocutory appeal of the decision in the Second Circuit.

Cleary and Legal Aid submitted an amicus curiae brief and participated at the preliminary injunction hearing in support of disclosure and government transparency. Corey Stoughton, who led the Legal Aid team, said, “This 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.”

At a prior hearing on July 22, 2020, Judge Failla had also entered an order barring amicus curiae New York Civil Liberties Union (NYCLU) from publishing records it received from the Civilian Complaint Review Board (CCRB) through a Freedom of Information Law request before the unions’ filed their suit, although Judge Failla lifted that order several days later on July 29, 2020. The unions filed an interlocutory appeal in the Second Circuit (20-2400), seeking to have the original TRO reinstated as against NYCLU and an emergency stay of the order lifting the TRO pending appeal. Cleary and Legal Aid submitted an amicus curiae brief on behalf of Legal Aid and in support of NYCLU arguing that the Court’s decision was an unconstitutional prior restraint and that the Court lacked jurisdiction to enjoin a non-party that lawfully received materials through FOIL prior to the suit. The Second Circuit denied the unions’ request for an emergency stay on August 20, 2020, with a written opinion forthcoming. On that same day, NYCLU published an online database of more than 300,0000 disciplinary records that it had obtained from the CCRB.

The case has received widespread media coverage on The New York Times, CNN, ABC News, NBC News, USA Today, Gothamist, and other news outlets.

To view the amicus brief filed in SDNY, click here. To view the amicus brief filed in the Second Circuit, click here.