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NYCLU files appeal over withheld RPD disciplinary files

James Brown

The New York Civil Liberties Union is appealing a lower court’s ruling that the Rochester Police Department doesn’t have to release all of its officer disciplinary records.

The organization filed its appeal Tuesday with the state’s Appellate Division, according to a news release. The NYCLU previously submitted a broad request for all of the department’s disciplinary records and unsuccessfully sued it and city government to get the files, which they claimed the entities failed to produce.

A law signed by former Gov. Andrew Cuomo in June 2020 repealed section 50-a of Civil Service law. The statutes had long shielded police disciplinary records from the public, and the intent of the law was to make the records subject to state Freedom of Information Law requests.

But departments across the state have been selective with what they’ve released. For example, an online database of disciplinary records released by the city in January 2021 only includes records where misconduct allegations against officers were sustained.

The NYCLU had initially submitted a freedom of information request for the department's disciplinary files in September 2020. It filed its lawsuit the following December. It has filed similar legal actions against the Buffalo and Syracuse police departments.

State Supreme Court Justice Ann Marie Taddeo ruled in August 2021 that the Rochester Police Department was not legally required to provide records relating to disciplinary matters that predated the 50-a repeal or for allegations that were not sustained.

“With the repeal of section 50-a, the state Legislature meant for these documents to become public, and we will continue to fight in court until they are,” Bobby Hodgson, supervising attorney at the NYCLU, said in a statement. “Being able to access complaint records from the years leading up to 2020 — and being able to compare when the Rochester Police Department did impose discipline against when and why it did not — remains vital to vindicating the public’s right to complete information about the police misconduct that takes place in their communities.”

Philip Urofsky of New York City-based Shearman and Sterling is providing the NYCLU with pro bono legal representation for the case; he represented the organization during the original proceedings. He has also provided pro bono legal assistance to the Police Accountability Board.

“We would expect the Rochester Police Department would welcome transparency into its department and the conduct of its officers, but unfortunately that has not been the case,” Urofsky said in a statement. “We look forward to continuing to advocate for the public release of these files, which was plainly contemplated by the legislature in its repeal of section 50-a.”

In its appeal, the NYCLU argued that the lower court ruling was inconsistent with state public records laws and was against public interest. It asked that the court order the Rochester Police Department to release all of its disciplinary records, including those where allegations were not sustained or where the matter predated the repeal of section 50-a of state Civil Service Law.

“That result is the only outcome consistent with the amended FOIL law, and it reflects the Legislature’s clear intent to provide New Yorkers with basic transparency about how local police departments investigate allegations of police misconduct, not just with a small subset of examples where departments have chosen to impose discipline,” the appellate filing reads.

Gino Fanelli covers City Hall. He joined the staff as a reporter in 2019 by way of the Rochester Business Journal, and formerly served as a watchdog reporter for Gannett in Maryland and a stringer for the Associated Press.