By Ronald Miller, J.D.
Police unions were denied a stay of the district court order permitting New York Civil Liberties Union to publicly disclose information concerning disciplinary records of police officers.
Because the New York Civil Liberties Union (NYCLU) was not an entity “in active concert or participation with” persons bound by a temporary restraining order that prohibited the disclosure of information concerning disciplinary records of New York City police officers, a district court properly excluded the NYCLU from the disclosure prohibition, ruled the Second Circuit. The NYCLU lawfully gained access to the information at issue before the July 22, 2020, disclosure prohibition was issued, so it could not have known of a prohibition that did not then exist. Because the police unions had no probability of success on the appeal, the Second Circuit denied their motion for a stay pending appeal (Uniformed Fire Officers Association v. DeBlasio, August 27, 2020, Newman, J.).
This dispute arose out of the New York legislature’s repeal of a provision that had shielded from public disclosure personnel records of various uniformed officers. Following repeal, on July 9, the NYCLU submitted a Freedom of Information Law (FOIL) request to New York City’s Civilian Complaint Review Board (CCRB) for information about civilian complaints concerning police officer misconduct. On July 14, the NYCLU was provided with a link enabling it to download the database containing information about complaints. On the same day, several unions filed a complaint seeking an injunction to prohibit agencies from publicly disclosing what was described as “unsubstantiated and non-final allegations.”
No prohibition at the time. When the NYCLU’s FOIL request was made and when the CCRB promptly responded to it, there was no TRO or injunction prohibiting the NYCLU, or anyone else, from seeking, receiving, or disseminating these records. On these undisputed facts, the NYCLU could not have been in “active concert” with a party to a TRO or an injunction. Thus, the unions showed no likelihood of success on the merits of their claims against the NYCLU. With likelihood of success totally lacking, the aggregate assessment of the factors bearing on issuance of a stay pending appeal cannot possibly support a stay.
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