New York Litigators Secure Victory on FOIL Request
Following the 2020 repeal of Civil Rights Law Section 50-a’s bar on disclosure of police disciplinary records, the New York Civil Liberties Union (NYCLU) submitted Freedom of Information Law (FOIL) requests seeking disciplinary records to various police departments across New York state. Several law firms, including a New York-based team of Latham litigators, have worked with NYCLU on these requests.
While some police departments in New York readily complied with FOIL requests for disciplinary records following Section 50-a’s repeal, other departments have been reluctant to do so. In this case, the New York State Police did not comply with a FOIL request for the disciplinary records of its officers from between January 1, 2000 and September 15, 2020, stating, among other things, that it would be unduly burdensome to review and disclose such a large volume of disciplinary records.
In July 2022, Latham challenged this categorical refusal to turn over disciplinary records by filing an Article 78 petition in New York State Supreme Court, Albany County. The Supreme Court partially granted the petition, agreeing with Latham that critical records, including the disciplinary records of 8,109 officers, should be produced, and instructed the respondents to produce these documents on a rolling basis.
The respondents appealed, renewing its arguments that compliance with the request to disclose disciplinary records was unduly burdensome due to the request’s volume. On June 20, 2024, following briefing and oral argument, the Appellate Division, Third Department, rejected the respondents’ arguments and affirmed the Supreme Court’s order requiring rolling production of disciplinary records for officers who had been the subject of misconduct complaints. The Third Department agreed with Latham that “the time-consuming process entailed by disclosing records that have been, in most respects, completely shielded for nearly 50 years does not provide justification for indefinitely foreclosing disclosure based solely on the volume of the request.”
The court explained that requiring rolling production would “mitigate the burden facing respondent, adequately contemplate respondent's future changes to its record-keeping processes and resources, conform with the broader goals of disclosure pursuant to FOIL and, most importantly, reflect the new reality of disclosure obligations for law enforcement agencies prompted by the repeal of Civil Rights Law § 50-a.” This new appellate decision will provide important guidance as NYCLU and others continue to seek access to police disciplinary records and promote transparency in the wake of Section 50-a’s repeal.
The Latham team consisted of associates Peter Trombly (who argued the Third Department appeal), Ben Herrington-Gilmore, Molly Babad, Nikita Kansra, Emma Dougall, and Jason Petropoulos. The team was supervised by partners Jamie Wine and Larry Buterman.