Efforts by law-enforcement unions to keep the New York Civil Liberties Union from publishing cops’ disciplinary records were dealt a setback July 28 when a Manhattan Federal Judge revised her earlier restraining order, in effect permitting the publication of a trove of complaints against 81,000 past and present NYPD officers.
But following the unions’ immediate appeal of U.S. District Judge Katherine Polk Failla’s ruling to the U.S. Court of Appeals for the Second Circuit, that court issued a stay, precluding the civil liberties organization from publishing its cache of records.
Shock and Outrage
The seesaw battle over the publication of the misconduct complaints, released to the NYCLU by the Civilian Complaint Review Board following a Freedom of Information Law request, will remain unsettled until the matter comes before a Second Circuit panel Aug. 18.
The NYCLU’s deputy legal director, Molly Biklen, said that delay amounted to judicial suppression.
“It is, patently, we think, unconstitutional, and a real outlier to restrain someone who has documents they got through completely lawful means, which are in the public interest, to stop us from publishing them,” she said during a July 30 interview. “Issues of police accountability on police misconduct are of central concern, and to stop the public from knowing about these issues is a disservice and we think improper.”
But the unions’ attorneys contend that the cache of complaints against the officers—likely including tens of thousands never substantiated—released to the NYCLU in a matter of days following the June 12 repeal of a state law, known as 50a, that shielded uniformed officers’ personnel records, were not sufficiently vetted to ensure that their release complied with the Freedom of Information Law’s assurances of privacy.
'Fighting Wholesale Dump'
“It’s not the idea of police transparency that we’re challenging. What we're challenging is the unilateral decision by all of these agencies, including the New York City Police Department and the CCRB, to just do a wholesale dump of officers’ personnel and disciplinary records online without any sort of review or meeting any of the requirements of the Freedom of Information Law,” said Jim Moschella, one of the attorneys representing the initial lawsuit’s plaintiffs, who include all five city police unions as well as the Correction Officers’ Benevolent Association, the Uniformed Firefighters Association and the Uniformed Fire Officers Association.
“We are obviously outraged, we’re shocked at the breadth and the scope of that disclosure,” Mr. Moschella said. “It’s impossible for them to have abided by or complied with the law in producing such a massive amount of data in such a short period of time. They knew an injunction was coming.”
The unions’ suit, initially filed in State Supreme Court on July 15, names several agencies and their principals as defendants, including the city, the NYPD, the CCRB, the Fire Department, the Department of Correction and others.
The CCRB did not respond to an inquiry regarding that allegation.
Ms. Biklen, the NYCLU attorney, said the publication of the complaints, including those determined to have been unfounded or unsubstantiated, as well as those against officers who were exonerated of charges, were a matter of public interest, “far beyond any individual officer,” especially so given the opaque nature of the NYPD’s and the CCRB’s disciplinary process.
'Immense Public Interest'
“The big issues are really about how the police department and how the CCRB are able to investigate these [complaints], are able to determine whether discipline is warranted or not, and how they are substantiated,” she said. “How this process works is of immense public interest. And even where there are both unsubstantiated and substantiated complaints gives the public tremendous insight into, is this effective oversight over a public agency?”
Mr. Moschella disputed the value of disseminating the names of officers who were not found guilty of misconduct.
“What's the probative value of those records? There is none,” he said. “This is just vindictiveness, it's for harassment, it’s to embarrass these officers…This isn’t about transparency.”
He said the plaintiffs would continue to fight the public release of the NYCLU’s database.
Judge Failla’s earlier order, issued July 22, had barred the NYCLU from publishing cop-complaint documents it had received from the CCRB. That order followed the unions’ contention that the NYCLU had collaborated with city officials to release the records ahead of a court order that would have prevented their release.
The NYCLU, though, said it had not received any records since the unions’ initial suit. In a July 28 letter to the Judge, NYCLU attorneys, citing the court case that eventually led to the publication of the Pentagon Papers in 1971, further argued that since the news organization ProPublica had already posted similar records online, although far fewer of them, the restraining order violated the First Amendment.
“That others have the information the NYCLU is enjoined from publishing further supports the NYCLU’s request that the order against it be lifted,” the letter said. “Not only is the restraining order unconstitutional, it will do little or nothing to keep the CCRB information at issue here from the public.”
ProPublica had also requested the records from the CCRB, the independent agency that investigates and prosecutes cases of alleged police misconduct, soon after the June 12 repeal of Section 50-a that shielded uniformed officers’ personnel records from public scrutiny. Its database lists active-duty officers who’ve had at least one allegation against them substantiated by the CCRB—roughly 4,000 cops.
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