Police Union Still Insists NY Misconduct Records Are Secret Despite Court Decisions Saying Otherwise
When you're playing with house money, playing one losing hand after another isn't a sign of tenacity. It's just a way of signaling you can't be trusted with the house's money.
That's why appeal after appeal from government entities don't tend to indicate that they're in the right. It just means they don't care how much money they spend because it's not coming from their own pockets.
The same principle applies to police unions. The money they use to litigate comes from the officers they're supposed to be serving. At some point, you'd think they would experience some fleeting shame against lighting their contributors' money on fire repeatedly, but the sad fact is that most cops represented by New York's Police Benevolent Association (PBA) are more than happy to keep burning their own money if it means there's even the most remote chance their past misdeeds won't come back to haunt them.
There have been plenty of legal challenges against the repeal of 50-a, the shorthand that refers to the law that - up until June 2020 - gave law enforcement agencies the option to withhold misconduct records requested by members of the public.
The repeal opened up these records to public access, reversing 44 years of state-enabled opacity. Despite every ruling to date going against those challenging the return to the pre-1976 status quo, the PBA still thinks there's a war to be won here. Here's Josh Russell, reporting on the PBA's somehow still-ongoing legal battle engaged to prevent one of city's most pro-cop papers (the NY Post) from obtaining past misconduct records.
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intended a confidentiality provision enacted in 1976 to be conferred to police officers as a vested right after it was repealed in 2020.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."
PBA attorney Matthew Daly is, at best, being disingenuous here. The PBA is asking this court to basically codify something that isn't present in the law: a limitation that prevents disclosure of records generated before the law's repeal in 2020.
As the court pointed out in late 2023, there's nothing in the law that forbids access to records created prior to this repeal.
By their nature, FOIL requests seek records that were generated prior to the request date. In amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, the Legislature did not limit disclosure under FOIL to records generated after June 12, 2020, and we will not impose such a limitation ourselves.
Yet, the PBA persists, guided by little more than its access to other people's money and a burning desire to progress the rot in its barrel of apples by pretending there's no way the legislature intended to make this law retroactive. It's a stupid point to make, as NY Post attorney, Jeremy Chase, told the court:
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.
This leaves the PBA as the last bulwark against... um... serving the public trust. If the PBA (or the NYPD officers it represents) actually cared about rebuilding trust and setting it back on the path towards earning the nickname New York's Finest," it wouldn't be blowing cash in court trying to keep its dirty laundry buried under empty body cam boxes in the back of the metaphorical closet. Instead, it has chosen to spend nearly a half-decade fighting this small move towards greater transparency despite having lost at every judicial level to this point.