Buffalo Police Benevolent Ass'n, Inc. v. Brown

• Decision Date: 09 October 2020
• Docket Number: 807664/2020
• Citation: 69 Misc.3d 998,134 N.Y.S.3d 150
• Parties: BUFFALO POLICE BENEVOLENT ASSOCIATION, INC., and Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO, Petitioners/Plaintiffs v. Byron W. BROWN, in his official capacity as Mayor of the City of Buffalo; Byron C. Lockwood, in his official capacity as commissioner of the Buffalo Police Department; the Buffalo Police Department; William Renaldo, in his capacity as commissioner of the Buffalo Fire Department; and, the Buffalo Fire Department, Respondents/Defendants and James Kistner, Intervenor/Respondent
• Court: New York Supreme Court

69 Misc.3d 998
134 N.Y.S.3d 150

BUFFALO POLICE BENEVOLENT ASSOCIATION, INC., and Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO, Petitioners/Plaintiffs
v.
Byron W. BROWN, in his official capacity as Mayor of the City of Buffalo; Byron C. Lockwood, in his official capacity as commissioner of the Buffalo Police Department; the Buffalo Police Department; William Renaldo, in his capacity as commissioner of the Buffalo Fire Department; and, the Buffalo Fire Department, Respondents/Defendants
and
James Kistner, Intervenor/Respondent

807664/2020

Supreme Court, Erie County, New York.

Decided on October 9, 2020

134 N.Y.S.3d 151

JOHN J. GILMOUR, ESQ., Buffalo, & DANIEL M. KILLILEA, ESQ., Attorneys for Petitioners/Plaintiffs

CORPORATION COUNSEL FOR THE CITY OF BUFFALO, Attorneys for Respondents/Defendants, William C. Matthewson, Esq. of counsel

STEPHANIE A. ADAMS, ESQ., Attorney for Intervenor/Respondent

Frank A. Sedita III, J.

134 N.Y.S.3d 152

69 Misc.3d 999

The principal issue before the court is whether to enjoin the Respondents from releasing certain information contained in the disciplinary files of City of Buffalo police officers and firefighters.

§ 50-a of the NY Civil Rights Law (50-a) was repealed on June 12, 2020. Enacted in 1976, 50-a provided, in relevant part, that personnel records used to evaluate the performance of police officers and firefighters could not be publicly disclosed unless the officer/firefighter consented to it or a court ordered it. Soon after the repeal of 50-a, the Buffalo Common Council requested that the Buffalo Police Department turn over information concerning complaints of police officer misconduct. The Buffalo Police Benevolent Association (PBA) filed a grievance, under its collective bargaining agreement with the City of Buffalo, to prevent the release of this information. This lawsuit -- a Petition pursuant to CPLR Articles 75 and 78, combined with a Declaratory Judgment action -- was commenced by the filing of an Order to Show Cause application on July 22, 2020.

Petitioners sought declaratory, injunctive and provisional relief, based upon seven causes of action set forth in the Verified Petition of Buffalo PBA President John Evans. More specifically, the court is being asked to declare that any future decision to publicly release any information concerning "unsubstantiated and pending allegations," as well as those concerning, "settlement agreements entered into before June 12, 2020," would violate collective bargaining agreements entered into between the City of Buffalo and its police and

69 Misc.3d 1000

firefighter unions; would violate Petitioners' due process and equal protection rights; and, would otherwise be arbitrary, capricious and mistaken.

Petitioners emphasize that they are not seeking to block the public disclosure of information concerning proven instances of police misconduct. They are instead seeking protection from the irreparable reputational harm that would result from the disclosure of unsubstantiated allegations; i.e. alleged instances of misconduct that were not proven to be true or turned out to be unfounded or demonstrably false. Petitioners note that members of many other occupations and professions are afforded statutory protection from the disclosure of unsubstantiated allegations made against them. 50-a had afforded similar statutory protections to police officers and firefighters.

Petitioners believe their disciplinary records should remain secret, despite the repeal of 50-a, because a privacy interest in the confidentiality of information contained in the records is recognized at common law. According to Petitioners, a "judicial consensus" in this regard pre-dates and is independent of the statutory protection once afforded by 50-a. Petitioners contend that in light of these remaining common law protections for their own occupations, as well as statutory protections in place for those in "similarly situated" occupations, the release of any unsubstantiated or pending allegations lodged in their personnel files would violate their due process and equal protection rights, as guaranteed by the Federal and State Constitutions.

Respondents objected to neither the issuance of a show cause order nor the imposition of a temporary restraining order. Respondents then filed an Answering Affirmation, additionally consenting to the injunctive relief sought by Petitioners.

James Kistner promptly filed a motion to intervene. Mr. Kistner is the plaintiff in an ongoing federal lawsuit, alleging mistreatment at the hands of City of Buffalo police officers. The defendants in the federal case allegedly refused to release their

134 N.Y.S.3d 153

disciplinary files, even for the limited purpose of discovery. The basis for that refusal was none other than the TRO issued in this action. Mr. Kistner wished to intervene because he was being directly and substantially impacted by the TRO. Mr. Kistner also suggested a conflict of interest existed, noting that the City of Buffalo Corporation Counsel represented both the defendants in the federal lawsuit as well

69 Misc.3d 1001

as the Respondents in this one. Mr. Kistner then went on to list several legal arguments that he would assert if named a party.

Mr. Kistner's principal contention strikes at the very heart of the Petitioners' case theory. Petitioners suggest the collective bargaining agreements and common law precedents which shield the disclosure of police disciplinary files fill the vacuum caused by the repeal of 50-a. Mr. Kistner suggests that no such vacuum exists by pointing to what both named parties neglect to mention: that state statutes governing freedom of information (FOIL) requests were amended simultaneous to the repeal of 50-a. For example, Public Officers Law § 86(6)(a), now provides law enforcement disciplinary records that must presumptively be disclosed, include "any record...