MANHATTAN (CN) — New York City’s largest police union urged the state’s highest court on Thursday to not apply George Floyd-era reforms requiring that police departments disclose open and unsubstantiated disciplinary records to be retroactively applied to officers’ misconduct records priors to the June 2020 repeal of a provision that kept such records secret.
The Police Benevolent Association of the City of New York asked a seven-judge panel of the New York Court of appeals to apply retroactivity analysis on the question of whether or not state lawmakers intended a confidentiality provision enacted in 1976 to be conferred to police officers as a vested right after it was repealed in 2020.
“We’re just stuck, at best, with a very ambiguous record,” Police Benevolent Association lawyer Matthew Daly told the appeals court on Thursday afternoon. “Policy arguments can be made on both sides — there are policy arguments for disclosure, but there’s also policy to protect rights.”
Fighting off document requests from the New York Post, the union says the mandate to retroactively make those old records public would infringe vested rights of police officers and other covered employees “who for more than four decades relied on the statutory confidentiality in deciding how to respond to disciplinary matters.”
Such officer disciplinary records were previously shielded from public disclosure by the state civil rights law section 50-a, until the state repealed it in June 2020, as part of set of major accountability reforms responding to widespread local and national civil rights protests sparked by the police-involved killing of George Floyd in Minneapolis.
Shortly after 50-a — which previously required the concealment of disciplinary records of police officers, firefighters and prison officers from the public — was officially struck down, then-Mayor Bill de Blasio ordered a massive database of disciplinary records on NYPD police officers to be published online.
Upon the repeal of the secrecy provision, New York Post reporter Craig McCarthy quickly filed 144 separate Freedom of Information Law requests with the New York City Police Department, requesting disciplinary records of high-ranking or otherwise notable officers.
After the NYPD ignored McCarthy’s disclosure requests for a year, the New York Post’s parent company hired Davis Wright Tremaine LLP to litigate production of the NYPD records. The Police Benevolent Association then joined as an intervenor, arguing, that the repeal of Section 50-a lacked retroactive application.
The Post prevailed in New York State Supreme Court, where a judge granted their petition to compel disclosure under Article 78 of New York’s Civil Practice Law and Rules, finding “the NYPD failed to sufficiently justify its claim that the requested documents are so burdensome as to constitute a basis to deny petitioners’ FOIL requests.”
A mid-level state appeals court, the Appellate Division, First Department, subsequently affirmed the lower court’s ruling in favor of the newspaper’s request for production of old records that predate the June 2020 repeal date.
The union then brought an appeal to the state’s highest court, the Court of Appeals, arguing in an appeals brief that appellate ruling had departed from precedent “by writing retroactivity into the repeal of [section] 50-a where the legislature was silent.”
“In doing so, the First Department disregarded New York’s strong presumption against retroactivity, and instead reached back and wiped away four decades of reliance interests by police officers and other covered employees who undisputedly relied on the statutory confidentiality when they made binding decisions about how to resolve disciplinary cases,” the union wrote.
During in-person arguments on Thursday, Judge Anthony Cannataro questioned the union why the purported vested right of confidentiality is “not just an expectation that has been altered and not an actual right.”
Judge Caitlin Hannigan similarly pressed the parties on whether or not the retroactive confidentiality of officers’ records was a vested right, and if so, when did that vested right accrue.
The New York Post responded on appeal that the union’s objections to production of all records that predate the 2020 repeal, “completely guts the legislation” of the Freedom of Information Law.
“FOIL is inherently backward looking, and so by their nature FOIL requests seek records that were generated prior to the request date,” Davis Wright Tremaine attorney Jeremy Chase argued on Thursday. “The PBA’s interpretation here of the repeal would render it basically a nullity.”
Chase argued that if state lawmakers wanted to explicitly preserve confidentiality exemptions to the records that were shielded under 50-a instead of making all records presumptively public, they would have stated so when the provision was repealed in June 2020.
“The Legislature, if they wanted to carve out this period from 1976 to June 2020, they easily could have done that, they didn’t do that,” he said.
The Court of Appeals panel did not immediately rule on the appeal on Thursday afternoon.