Aug 17
2022
Police union pressing to suppress records
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Buffalo’s police union is making headway in its efforts to put a lid on the release of officers’ disciplinary records.
Last Friday, lawyers for the Buffalo Police Benevolent Association filed a lawsuit against the City of Buffalo, asking a judge to order the city to honor an arbitrator’s decision curtailing the public’s right to learn about allegations of police misconduct.
If successful, the lawsuit would require the city to destroy all records of a misconduct complaint against an officer unless the department’s Internal Affairs Division finds the officer guilty.
That would eliminate records of almost all complaints and the investigations into them, because Internal Affairs hardly ever finds officers guilty.
A 2017 Investigative Post analysis found 97 percent of excessive force complaints that were investigated by Internal Affairs ended in findings of “not sustained” — meaning investigators claimed they didn’t have enough evidence to determine guilt or innocence.
“It’s the fox watching the chicken coop when it comes to Internal Affairs,” Garry Connors, who won a $600,000 judgment against the city over the 2009 shooting death of his son, told Investigative Post for that story.
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In June 2020, in response to protests in the wake of the police killing of George Floyd in Minneapolis, the New York Legislature repealed section 50-a of the state’s civil service law, which had barred the release of police and fire disciplinary records for more than 40 years.
Journalists, attorneys, good-government groups and watchdog organizations responded by flooding police departments across the state with Freedom of Information requests for personnel records.
Many police unions, including Buffalo’s, fought back through lawsuits and contractual grievances. (Investigative Post joined a host of media organizations in opposition to the Buffalo PBA’s lawsuit.) The PBA won a brief stay on the release of disciplinary records from a state court judge, but ultimately lost.
The grievance avenue — wherein the PBA argued the release of personnel records violated the union’s contract with the city — eventually delivered the result the union was looking for.
Immediately after the repeal of 50-a, the PBA filed a grievance on behalf of every officer whose disciplinary records had been released as a result. The grievance argued those releases violated a 2018 agreement, which says the city must expunge from an officer’s file after five years any misconduct complaint that doesn’t end in the officer pleading or being found guilty by Internal Affairs.
The only exceptions under the agreement are complaints that bear on current or impending litigation.
In its grievance, the union demanded the city stop releasing records that ought to have been expunged and pay each officer whose records were released $100,000 in compensation for the contract violations.
In May 2021, an arbitrator — Jeffrey Selchick, who frequently hears disputes between Buffalo police and their management — agreed with the union. Selchick ordered the city to expunge police personnel records accordingly. He did not award the monetary damages the union requested.
Selchick reissued his finding, which is binding, in July. The PBA filed a lawsuit in state court on Aug. 12, seeking a judge’s affirmation of Selchick’s ruling.
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Police unions have been fighting the repeal of 50-a since Day One, and those fights continue in courts across the state. But courts have ruled that a contract’s provisions cannot supersede state law.
For example, the union that represents New York City police officers made the same argument in a federal court action as the Buffalo PBA is making now in state court: Investigations that don’t result in a finding of guilt must be expunged by NYPD and cannot be released, the union claimed.
But a federal district court judge ruled NYPD’s contractual agreement with the union to expunge such records didn’t bind the rest of city government, which was entitled to retain those records and obligated to release them under the state’s FOI Law.
A federal appeals court later affirmed the district court’s ruling, saying, “the NYPD cannot bargain away its disclosure obligations.”
Several unions won rulings that records generated before the repeal of 50-a — that is, any disciplinary complaints or investigations initiated earlier than June 2020 — should remain hidden from public view.
In response, state Sen. Jamaal Bailey of the Bronx, who sponsored the 50-a repeal, in February introduced new legislation to clarify the law’s intent:
Many police departments are refusing to disclose records related to “unsubstantiated” misconduct complaints, claiming that they remain confidential. Others are refusing to disclose records that were created prior to June 2020 or are claiming that other, irrelevant FOIL exemptions apply. There has already been extensive litigation concerning these refusals, resulting in a patchwork of conflicting rulings, including some that have incorrectly held that the legislature intended for many of these records to remain secret …
This bill reaffirms and clarifies the full scope of § 50-a’s repeal. It explicitly states that law enforcement agencies cannot continue to withhold these records beyond the narrow categories defined in the earlier repeal legislation, and it will provide courts with an unambiguous declaration of the legislature’s intent with respect to such records.
The bill has been in the Senate’s Investigations and Government Operations Committee for the past six months.
John Evans, president of the Buffalo PBA, did not respond to requests for comment, nor did the union’s lawyer, Dan Killelea. Neither did the city’s lead attorney, Cavette Chambers.
