Up until a few years ago, it was difficult if not impossible to review the disciplinary records of police officers. N.Y. Civil Rights Law section 50-a provided officers that protection. The State Legislature repealed that provision a few years ago in the wake of increased awareness of police misconduct. That legislative amendment has yielded new litigation about the scope and consequences of the Rule 50-a repeal.
The case is Uniformed Fire Officers Association v. DeBlasio, a summary order issued on February 17. The police and firefighters union opposed this legislative repeal. This litigation would scale back the scope of the new law, and, to that end, numerous amicus parties filed briefs in this case, including law enforcement entities and civil rights groups. The police argue that revealing disciplinary records, even in cases where the police were exonerated or where the complaints were deemed unfounded or unsubstantiated, would cause them irreparable harm. They sought a preliminary injunction, which the district court denied. The Court of Appeals (Leval, Lohier and Kearse) agrees with the district court. The records may be released to the public.
The police first argued that the collective bargaining agreement contains a provision that, upon an officer's request, the NYPD "will remove from the Personnel Folder investigative reports which, upon completion of the investigation are classified 'exonerated' and/or 'unfounded.'" While the contract contains that language, the City can still disclose this information to the public under the Freedom of Information Law because removing records from a personnel file does not require eliminating them from the city's records. On the basis of this reasoning, the police are not entitled to enjoin the city's decision to release the records to the public.
The police next argue that releasing unfounded or unsubstantiated complaints will cause them irreparable, or irreversible, harm even if the records will reveal the outcome of the investigation. The police argue that publicizing these records will hurt their future employment prospects. But, the Court of Appeals says, while other states have already released records like this, "the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities." In addition, and this may come a shock to non-lawyers, but loss of economic opportunities is not considered "irreparable harm" under preliminary injunction case law. Even financial distress is not considered irreparable harm under the precedents because, in theory, you can recoup the money later and get back on track financially. Irreparable harm usually involves the loss of constitutional freedoms or permanent damage to a historical artifact.
I am sure the Unions argued in this case that releasing records would cause irreparable harm because it would deprive them of a property right under the Due Process Clause. But the Court of Appeals goes on to hold that the police have no such property right in diminished future employment opportunities. The Court held that in Sadallah v. City of Utica, 383 F.3d 34 (2d Cir. 2004). Continuing with its constitutional analysis, while the Union claims that releasing these records would violate the Equal Protection Clause (because other public workers will not have their disciplinary records publicized), the Court rejects that argument also, holding that "because the public has a stronger legitimate interest in the disciplinary records of law enforcement officers than in those of other public employees, the District Court correctly determined that there was a rational, nondiscriminatory basis for treating the two sets of records differently."