A New York state appeals court has ruled that a 2020 state action authorizing the public disclosure of police misconduct records can be applied retroactively, opening the door to more scrutiny of police actions that have previously been hidden from the public, court records show.

On June 12, 2020, amid widespread protests following the murder of George Floyd, New York legislators enacted a repeal of Section 50-a of New York State Civil Rights Law, which until then largely exempted cops' disciplinary records from public disclosure.

On the same day Section 50-a was axed, New York Post reporter Craig McCarthy filed 144 separate freedom of information law requests with the New York City Police Department, seeking disciplinary records of high-ranking or otherwise notable officers. After the NYPD ignored the requests for a year, the Post hired Davis Wright Tremaine LLP to litigate its way to the records.

On Thursday, a four-justice panel of the Appellate Division ruled that the repeal made all records already existing at the time of its enactment accessible to the public, rejecting the arguments of NYPD's largest police union to the contrary.

Davis Wright partner Jeremy A. Chase called the ruling "a great decision across the board" that will ensure more transparency on records of police misconduct going back years.

Chase said the ruling marked the first time that a New York state appellate court has squarely held that the section's repeal applies retroactively. It is also the first time, he said, that a mid-level court has awarded attorney fees in a post-Section 50-a repeal case.

"The decision itself is a complete win for the New York Post, for the press, and for the public as a whole," he told Law360. "This decision is going to be very important in making sure that the NYPD disciplinary process is open to the public, and people will be able to subject it to public scrutiny."

Section 50-a was enacted in the 1970s to shield police disciplinary records from the public, categorically banning their disclosure in civil and criminal litigation as well as under freedom of information laws, unless an affected officer consented or a court issued an order.

Although the repeal of the section was in the works since 2019, it was the outrage over Floyd's death at the hands of Minneapolis police that helped propel it across to the finish line.

After McCarthy invoked the state's freedom of information law, the NYPD's sluggish response was made even slower by the COVID-19 pandemic and other court actions involving police unions.

Sixteen of the reporter's requests were denied on grounds that the police department couldn't locate the records. For others, the department made a blanket privacy argument that the records were protected, because if disclosed, they would have caused an unwarranted invasion of the officers' privacy.

But 116 of the requests were still unanswered when the Post filed suit in October 2021.

In a petition, attorneys for the Post argued that by keeping the FOIL requests in limbo indefinitely by neither granting nor denying them, the NYPD was avoiding court intervention.

"Such a rule would grant the NYPD the right to withhold records and avoid judicial review indefinitely if it simply declines to address a request," the petition said. "That is not the law."

The following month, the Police Benevolent Association of the City of New York, or PBA, which represents the majority of uniformed officers in the force, asked the court to let it intervene in the case. Its main argument was that the repeal of Section 50-a protections did not apply retroactively to records created before the repeal's date.

"There is no language in the repeal legislation stating that the repeal was retroactive," the union's motion said.

On Dec. 6, New York Supreme Court Justice Arlene P. Bluth granted the Post's petition in full, holding that McCarthy was entitled to access the records.

In her order, Justice Bluth rejected the NYPD's argument that the records request was too burdensome, but also sank the PBA's retroactivity claim saying the department had essentially already waived it by not raising it itself.

At the same time, however, Justice Bluth denied Davis Wright's request for attorney fees.

The PBA appealed the lower court's decision to the Appellate Division on retroactivity grounds only. The NYPD also filed an appeal, but later withdrew it. Meanwhile, Davis Wright lawyers filed a cross-appeal on the attorney fees issue.

On Thursday, the Appellate Division panel, which included Justices Barbara R. Kapnick, Jeffrey K. Oing, Peter H. Moulton and John R. Higgitt, said Justice Bluth should have decided on the PBA's retroactivity argument, but ultimately found the repeal was retroactive.

The panel said the PBA's argument that Section 50-a should continue to bar record disclosures "would run counter to the clear legislative purpose of providing public access to records that might contain information about actual or alleged police misconduct."

The PBA has a month to take the case before the New York State Court of Appeals, the state's highest court.

The city's Law Department, which represents the NYPD and its leadership, and an attorney for the PBA declined to comment on Friday.

McCarthy and the New York Post are represented by Jeremy A. Chase and Lindsey B. Cherner of Davis Wright Tremaine LLP.

The PBA is represented by Matthew C. Daly of Golenbock Eiseman Assor Bell & Peskoe LLP and Michael T. Murray of the Office of the General Counsel of the Police Benevolent Association of the City of New York Inc.

The case is NYP Holdings Inc. at al. v. New York City Police Department at al., case number 2023-00242, in the Supreme Court of the State of New York, Appellate Division, First Judicial Department. 

--Editing by Lakshna Mehta.

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