INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 STATE RECEIVED NYSCEF: 08/17/2020 NEW YORK OF SUPREME COURT BUFFALO POLICE COUNTY : OF ERIE BENEVOLENT ASSOCIATION, PROFESSIONAL INC., ASSOCIATION, AFL- INC., and BUFFALO FIREFIGHTERS LOCAL 282, INDEX CIO, IAFF, NO: 807664/2020 Petitioners/Plaintiffs, vs. BYRON W. as mayor of the BYRON C. city the of the BUFFALO and of the capacity official Police capacity Department; DEPARTMENT; in his RENALDO, BUFFALO the in his Buffalo POLICE cc==4==4nner official of Buffalo; LOCKWOOD, as commiccinner WILLIAM in his BROWN, Buffalo FIRE official fire as capacity Department; DEPARTMENT, Respondents/Defendants. MEMORANDUM OF LAW PETITIONERS' Stephanie The Law 363 Grant Buffalo, A. of Street, NY Stephanie Suite TO THE OPPOSITION FOR MOTION Esq. Adams, Office IN Adams, PLLC 14213 M. The Law 363 Grant Buffalo, 716.464.3386 Esq. Keltz, Office of Street, NY 716.464.3386 1 TO AN INJUNCTION Jessica 1 AND PETITION 14213 Stephanie Suite 1 Adams, PLLC INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 OF CONTENTS TABLE Page TABLE OF AUTHORITIES 3 STATEMENT OF INTERVENOR PRELIMINARY STATEMENT THE FREEDOM EXPANSION OF THE THE ARGUMENT I.) II.) PUBLIC CURRENT 7 AND THE SIMULTANEOUS LAW............................................ 11 .....14 15 CAUSE FIRST SECOND SECTION 1, ARTICLE BY ERROR CAPRICIOUS PETITIONER/PLAINTIFF'S 20 CAUSE OF ACTION: BREACH CAUSE OF ACTION: OF .........................21 CPLR 7803-ACTION LAW PETITIONER/PLAINTIFF'S AND NY CONSTITUTION OF ACTION: ........................ FIFTH OF NY PROTECTION)........ ............................................. PETITIONER/PLAINTIFF'S 75...............15 PROCESS).................................18 CAUSE FOURTH PETITIONER/PLAINTIFF'S ARTICLE OF ACTION: 6 (DUE THIRD 11 (EQUAL OF ACTION: CAUSE 1, ARTICLE PETITIONER/PLAINTIFF'S ARBITRARY VII.) THE BALANCE PETITIONER/PLAINTIFF'S AFFECTED VI.) AND OF 50-A ("FOIL") REPEAL OFFICERS PETITIONER/PLAINTIFF'S CONTRACT V.) 6 ____________________ ______ SECTION IV.) REPEAL LAW OF PRIVACY: CONSTITUTION III.) AND EVOLUTION OF INFORMATION PROTECTION III.) ....................................-----------................. ¬__.....................................7 ACCESS: II.) ---------------------------------5 D BACKGROUN I.) INTEREST 25 SIXTH CAUSE OF ACTION: CPLR 7803- ACTION SEVENTH 28 CAUSE OF ACTION: DECLARATORY JUDGMENT 30 CONCLUSION= .......... 2 ...............31 INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 OF AUTHORITIES TABLE Cases Lee Page 87 New T T v. Dowliñg, W, People v David Robert OO v Dowling, Miller second Court of Appeal, 87 NY2d 1043 90 NY2d v DeBuono, Subway-Surface N.Y. York 783 Supervisors ...............................................................................................18 v NY City 418 [2001] People v. Joseph, 86 N.Y.2d 565, 570, Ins. Co. of N.Y., Life 56 AD2d Tr. Auth., 96 N.Y.2d Penn 18 [2000] 18 v Novello, v. William 130 [1996] Aliessa Schozer 18, 19 (1996) 95 NY2d [1997] Asso. 708 699, 53 [2d Dept 70 1977] 71 658 N.E.2d 635 996, 84 N.Y.2d N.Y.S.2d 639, 643, 21 123 (1995) 644 N.E.2d 1353, 620 N.Y.S.2d 21 (1994) NW Liq .:i ñg Corp. v. Helmsley-Spear, A.D.2d 248 Inc., 304, 305, 670 N.Y.S.2d 488 ..... Schiffren United v. Kramer, States Allied Structural Associatioñ Co. & Loan Bldg. A.D.2d 225 Trust Home Davis 797 v New Assn. Steel 194 US Sullivan v Nassau Gannett News Service Services [415 N.Y.S.2d Washiñgton Post v B üisdé , I, 940 431 US 1, 21, 290 US 398, US 438 F2d 766, 175 (2d Dep't Interim Inc. v. 780 v. New 1998) 21 1996) 22 22 435 244 234, 771.... 72 ...... ... 22 22 Fin. Of)ìce Auth., 959 of Alcohe!ism F3d and 54 [2d Cir Substañce 77-23 2020] Abuse .............................. .....24 26 (1979)] York Dep't .......21 456 451, County Co. Jersey, N.Y.S.2d 640 758, Co. v Spannaus: of Surrogates v Mills, 757, (1st State Insurance Department 3 61 NY2d 557, 565 (1984) 26 INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 Statutes NY Arts NY Civil Rights NY Civil Service and NY CPLR CPLR Cultural Law Affairs Law 50-a § 57 (Repealed June 12, 5,6,7,8, 2020) 27, 29, 31 Law......................................14 § 2106 Article 63...................15, 16, NY CPLR Article 75............ NY CPLR Article 78............................ NY Labor Law NY Public .....5, 15, 16, 32 ..................................... 28 5, 25, § 807(10)..............15 Law Officers "FOIL")... ...5, 42. 1983 U.S.C. 32 6, 7, 11, Article 6 (also known as "The 12, 14, 17, 21, 13, 15, 20, Freedom 23, 24, 25, of 27, Law" Information 28, 29, 30, 31, or 32 Other United New States York New memo and NYCRR, Part York text Cr-- on New York 20, 25, Senate 25 30 2020 Bill S8496 7-8, 18, Government Schedulc Title ":e 18 Open Dispesition 185, for 19, 22, §13-9 Cc--l"cc Retention New and Charter, City York Constitution...........19, Constitution...................12, Sponsoring Buffalo of American for New 2019 Annual York Local Report Government 8 on 26, Open Government Advisory 4 19 Opinion Records (LGS-1).........26 27 17195 29 INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 STATEMENT Proposed - Prcl of Law In this asked in Opposition the hybrid court Article to the Verified ("Intervenor"), Petition in judgment 78/declaratory INTEREST KISTNER ("Memorsñds- Injunction or Permañcñt --y JAMES Intervenor-Respondent Memora=dm this INTERVENOR OF and submits respectfully Petitioners' Motion for a Opposition"). /article 75/civil rights Petitioners action, to: and 1) Temporarily restrain immedistely publication the of information certain or records; 2) To show cause publication of those - pre' 3) as to why ¬ same and -ily the court should not issue an injunction barring records; enjoin permanently the reicase or publication of such records; and 4) declare that the release a) violate relevant b) violate the due c) violate the equal d) constitute e) be Because known as the documented revision the court the relief as the of Article of 6 of the of the relief clause of the and is illegal under Article or Civil Officers by New State York Constitution, State Constitution, Law Law (the petitioners 5 capricious." 6 of the and "FOIL"), Rights the York and arbitrary of sought New and Law, repeal agreements of the contract law Information Public clause of would bargaining protection a breach the information process requested reason deny such collective a "violation Freedom should of 50-a "Freedom and clearly ("50-a) Public to the contrary and the of Information dismiss the Law Officers Petition (also public policy accompañyiñg Law" with or "FOIL"), prejudicc. INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 STATEMENT PRELIMINARY A free records ("Access") records pertain. with instant The must society available. People of the courts, to weigh Law these momet of New State not only an imbalance expressly undertaken to correct. scrutinize only what considering Repeal (and context of the 89 the Public These of law other factors new New Protections invasion Respondent/Defcñdañts "New bar disciplinary of personal the record achievc:ncñt by court but to impose To is met and recent newly This means available to was we must preserved, due not to in the availability amendmats and do Repeal priorities. are the carefully. expanded si-Itaneous remedies. leaders, the that that assessing broad numinipal result divergent records" be newly may Repeal-requires very Privacy of records legislators, Privacy-a and y whose of Access, of those Repeal's §§ 86, 87, and Protections"). release of a broad information privacy." ("Respondents") and disciplh= created (the interests Access Access), impacting Law Officers the its repeal the Petitioner/Plaintiffs fellowing iñcluding but balancing the immediately Access enforcement protections enforcement "unwarranted formula "law "People"), between = ic-; enabling me the new time asked to govemment to whom on the action, of those Privacy have they concerns Privacy risk the the this access individuals is based In bringing impacting people's of those ("Privacy") ("Repeal"). (the of the ("Petition") concerns, York will ensure privacy in time-the otherwise To 50-a concerns out this However, interest compelliñg and safety raised In pointing the Petition/Complaint Rights have ("Petitioners") the Verified Civil longsüñdiñg balance on the These and others, 6 New who range of basis that such Protections, are enumerated specifically responsible release if observed for the would types be by castedhnship an INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 and RECEIVED NYSCEF: 08/17/2020 disclosure mand9±ory concerns the without "Uñsubstantiated of need and "law for the enforcescñt requested Allegations" Pcñding records," disciplinary overbroad and (as that term the concern can bar sweeping is defined Petitioners' address to releasing in Paragraph 1 of the Verified Petition). With pcñding balance represented adequately Action that to the request, and with FOIL. to in compliance and with Respandants by in apposition FOIL in mind, Verified any that in answering Petition future and FOIL the their such might Intervenor Petition, requested requests balance to Respondents be appears and relief, not in this requests that be received and his responded BACKGROUND THE On June signed into law As stated THE ACCESS: I.) 12, FREEDOM after 2020, Senate Bill in the through repealing memo" "sponsoring both Civil for LAW the Bill and Law 50-a. (found at AND 50-A ("FOIL") Assembly Rights the OF REPEAL OF INFORMATION passage 8496, AND EVOLUTION the Senate, Governor https://www.nyscñatc.gov/legislation/bills/2019/s8496h This exemption was adopted attorneys using from prosecutions. access these records current However, to both the records of those proceedings. According to the 2014 annual allow report and the State Legislature, police information law, departments that could in cross-examinations as narrowly of the disciplinary outcomes Governor in order in 1976 by the Legislature to withhold conceivably to prevent of police interpreted proceedings criminal witnesses by the Court themselves "this narrow has been expanded the public be used to evaluate 7 virtually Government any record the performance prevents or and the recommendations on Open from criminal of Appeals, by the State Committee exemption defense during to the in the courts that contains of a police any officer. " own to INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 Due to the interpretation misconduct that have not resulted to the public misconduct. The State Committee that prohibits public policy the public, constitute provides additional, information determine access it is known that agencies invasion records disclosure created that § 50-a has and their "creates of privacy. employees protections Furthermore, are admissible police to protect in a trial, officials activity by § 50-a is therefore created unnecessary, whose to the Civil the release to who have of certain adds additional against improper the denial by § 50-a. disclosure Service this bill without accountable of departmental information changes against FOIL's accessible. or withhold Recent a legal occurred." by law enforcement more entirely or other use offorce, that misconduct killings may redact have the ability regarding are almost and in some cases recommendations information. courts Finally, to information has stated agencies Police-involved non-discretionary if police excessive brutality, even when of law enforcement an officer against Government complaints, such as contact statute. of police or findings the need to make these records an unwarranted created charges are to make government of misconduct already FOIL which have increased charges, in criminal on Open are thus undermined. had histories FOIL disclosure, goals, of complaints or to victims inaccessible shield records of § 50-a, Law would have sensitive safeguards in the cross-examination and of public The broad and can be repealed prohibition as contrary on to public policy. Repeal of § 50-a will for be held accountable As not take Public can place be Law, Law "6", trust that law enforcement officers and agencies memo " may above-quoted it was due text a revision to that of the of not only revision, to what the picturc "sponsoring the State's is accessible Civil under the Rights the repeal Law, Freedom of 50-a but did the of ("FOIL"). Petitioners Paragraph and regain misconduct. in the in isolation; Officers Information seen help the public have they claim not addressed that the Repeal total "Elimi--"A 8 in their Petition. a categorical As prehihition illustrated against in the public INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 review of public " cannot that RECEIVED NYSCEF: 08/17/2020 all officers cl½:‡c Court and This slice focus content and consequaces do create impact very careful prohibit of Repeal, and law an act protections respondents from Petition. This real protections for grandiese simikly "promote" would entire attention such public." to the Respondents of the withest be because content categorizing, allegations commrm and which that if not is a shame for Petinenes to detail, could the barred Repeal members; the by and however, be overlooked both by Respondents. records and retaiñing, pessible not possible use very of records can but and destroying, a compelling to the interesting of records, use disclosing, while management, is generally population, on the law which, may of the potential to the protections Petitioners false and but records", disciplinary or constitutional share, of the is characteristic chañges are they members and and rights characterization of the as requested, resulting contractual defamatory, overblown characterization personnel petitioners hcluding unproven, This firefighters pre-existing citizens promoting and not average on the art to a very And achieved narrow who would science of creating, yet, orderly person, and them. archiving be meaningfùlly only topic through rather control of "records management." For to +===4 that: maintained by shared those appropriate by 1) the the definitions shared applicable a potential example, respondets, be definitions doenment law Parties and conformed inchiding with regislatians the their enforcement New Protections parties' upon 9 and by the raised and the and a document parties; Petitioners by definitions of the Civil Service retention the those 3) that Law; 4) that schediale process be of records 2) that policies; controlling 5) that would types records"; disciplhary contracts be updated be agreed concerns shared "law in the policies to the review immediately be reflected rctcñtion schition geñüiñe all informed for fulfilling INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 Freedom RECEIVED NYSCEF: 08/17/2020 of Information as to provide law assurance Officers Law; and labelled to reflect requests of the status "law appropriate 6) agree finally that for redaction that of the enforccmcat at each matter information of phase of barred newly a record complaint, if the (including, records" disciplinary terms were be confirmed by the would so Public be clearly "pending," defined), or "unsubstantiated". The exhibits themselves to do appears they the repeal bare iñjüñction are development and the contract negotiation the provisions new If the Repeal intent of of policies governing disclosure path place not and the to causes assurance will and of FOIL-accessible of the the Fortunately, to the action simple public will systems issue the to give would (i.e. is allowed new In law other of document the forward. 10 plain -=ds if the to engage is a strong results that risk (i.e. that following it will attention are Petitioners laws, management language to iñcludiñg careful the contract Parties traction, while contort it record-keeping). to gain words, and decame--ts, a the ce=p'iañcc proper and twist concepts legal so. Rather, meantime, Parties, there posidening current In the for the Rather, of words, meañiñg of the 4=~ntive simple not to do be argued. is no of are application comphace argument. that the there place Pentioners Respoñdcñts competence framing speculative relatively where and of take the of FOIL, admini±ative at all. of table, that expecting is granted, attendon deep legisladen, rhetoric m±=1 manner took they procedures maeMnations logic, forward petitioners of FOIL) show consideration of new People Petitioner's never application the by are arbitration without 50-am, petition nor things, to the heading requested Intervenor, the of these any of in meaningful the accompañyiñg of the be as if to detail, connected have regula6ens, and law to the brought and manda+ary provides a clear INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 AND REPEAL THE OF PROTECTION II.) SIMULTANEOUS PRIVACY: OF THE EXPANSION PUBLIC OFFICERS LAW related amended Upon Repeal, § 86 of the to the privacy of to add The new 6."Law law further in enforcement records" proceeding, (a)the cc=plaints, (b)the name of the employee (c)the transcript means information definitions § 87 of that enumerated c:=p':Eed of any discip¹inary any record created but not limited ineh'ding, and charges allegades, while records, of to add in same of terms law §86. are: §86 y di-ipmauy types amended was disciplinary to the di Law Officers enforcement restrictions definitions anferea=ent Public against in furtherance of a law to: an employee; of or charged; trial or hearing, including any avhihitc introduced at such trial or hearing; (d)the diaperiden (e)the final of any disciplinary written including the agency's discipline of the covered 7."Law enforca=æt any subsequent 8."Law defined probation thereof, factual agency" i-1 di officers of corrections findings proceeding" means action a police g authorities in section and its analysis means and discipline of the cGñduct the e----mament conducted agency and appropriate or agencies and :----"f procedure of the state or any political police forces of Edividsis law, a sheriff's department, a local department of corraeden, a local of individnals e=p1:yed as firefighters or supervision, or force m9intaining §87, the protections for the above-defined records 11 are spelled and agency. firefighter/paramedics. In L-pased of any invecEg:Een by a law enforcament or department 1.20 of the criminal a fire dep±ent, depc±mt, the dispasition supperhng employee. or disciplinary hearing as police department complete disciplinary enforcamant subdivision or me-mndum opinion and preading; out, and in±.L-· the was INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 4-a. A law enforcement as defined in section information specified such record under agency eighty-six These 89 of the positioned §87 same of section (a) items firefighter/paramedic, addrcsscs recrñber enfun ceirnerit of such record of this article two-c content members records the medical eighty-six the cen+°4-4ng prior to disclosing service law, or in accordance service law, or as otherwise the prior 2-b and of this article containing prior to misconduct officer, record, with required employed ofñcer, and 2-c subdivision by law. personal required Respondents are agency six article: emifon cennent as agency or fireñghter or of an agency's of such investigation; cell phone personal numbers, as deñned person two hundred fourteen eight shall not prohibit or a in a law named to article eighty- in section or Brefighter/paramedic, pursuant of section This paragraph 12 section the following peace ofñcer, or firefighter four of in subdivision this by a law or any other where redact to the disposition by a law enforcement except as defined the course during numbers, a c^-r'-'==+ and under records that are relevant peace officer, shall agency as a police telephorse employed records such obtained 2-b Petitioners 2-c, disciplinary of a person records sub-divisions protections: following to disclosing history a person, disciplinary from of this article of a person of such records, disciplinary of such record eighty-nine with a law enforcement not including as a police any portion of section law enforcement of this article, such for law enforcement may redact cross-reference inddi esses, personal six of this article family the of such person's (b) the home e-mail require that constitute involvisig in section records disciplinary this article. Petitioners' from investigation under Applying eighty-six information any portion eighty-nine to a request of this article, in subdivision protections 2-b. For records shall redact of section responding eighty-six specified law. to offer deñned agency such record disclosing two-b for law enforcement this article. in section the information of this article in subdivision 4-b. A law enforcement as defined to a request responding of the civil of the civil other provisions of INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 law regarding work-related, available publicly information such as title, salary, and dates of health service, employment; (c) any social security (d) disclosure of the use of an employee substance deñned abuse assistance in section eighty-six that may otherwise be disclosed techical that constitute eighty-six infractions as defined these definitions or condition do they enforcement firefighter/paramedic, (a) do not involve (c) or reporting Clearly, resulting public agency distinguish as defined may redact eighty-six rule with connected to or proceeding in subdivision records to pertaining of this article prior to the enforcement members officer, to to such person's investigative, by peace officer, or firefighter public enforcement, are as: or rules that concern, training, defined a law departmental of status, in newly which employed (b) are not on the Hewcver, of administrative of the public, based infractions," a person by as a police complaints agreement, "technical violation in this section related between in a se++lement related a minor as defined interactions are not otherwise or Breñghter disciplinary records" disciplinary nine of section do not records means solely by a law enforcement a law enforcement implieãted distiñgaish agency peace ofñcer, ofñcer, as agency this article. of being Infraction" by a law enforcement or to this article. in subdivision Notably, new as a police enforcement of this article, under § 86(9) the "law such records 9. "Technical give pursuant mental pr6gram, employed such use is mandated disclosing disposition, added of this article unless six of section assistance by a person service firefighter/paramedic, 2-c. For records or numbers; and supervision, responsibilities. the revision complete disciplinacy of the access process, laws as accomplished to those unless they records don't generated involve 13 by Senate at all interactions Bill phases with 8948 of the was intended complaint members of the to and any public, INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 are not RECEIVED NYSCEF: 08/17/2020 of public supervision and concern, or reporting information about not New Protections an employee, what reviewed Petitioners in the in the have and that Civil and Intervcñor a timely some previous the attention careful practices sections enforccmcñt has completely required new and balance have R~peal above, restriction" and systems access contract definitions, against has the not release built upon the to ensure FOIL requests and the this balañce new and As and not removed only of certain protections privacy built be will into found persons be answered the achieved of the those can by be reviewed purposes for Privacy restric6ons will provisions. mechs-d-s, records, challcñged for this FOIL by informed in r.cither failure, scuffling Pennoners by new rational system have they defined definitions. struck, this change," as plainly set by be not as a "sea reason outdated must illegal of private array law detail in in Access goveming named such to looking in further laws require may simply in to dec==r=% changed. obligations to use sections enhanced building However, disciplinary disclosures, the that an extensive Law. to detail. now Repeal Whatever Officers of BALANCE "Privacy" also the the Petitioners characterized was honoring and below, law Public while CURRENT and but appreciates maññct training, family. to as a "categorical records, Service enforcescñt, redeetions employee's THE "Access" referred restricted previously to investigative, require do IH.) As connected responsibilities. the Howcycr, are 86, §§ failed how and the that 89 of FOIL, nor original action. the now-illegal Respondents of valid laws While New in any Respondents to construe application 14 current to assert and 87, Petitioners over in the Protections way can contract cñacted and violate ignore must have they the law. the simply provisions accept to effect that a new clearly INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 stated on RECEIVED NYSCEF: 08/17/2020 public policy. and reason, law, It is the and need the interests now address to assert his of the access to records that People, under required this new Intervenor based balance, to assert his standing to intervene. Intervenor enter the full obligations such will content of the new of the original obligations Petitioner's contracts and new assert they Respr·=:'c=ts Causes under protections in are of Action, violated FOIL into 86, §§ in the and 87, light of their record; failure 2) to contest or to refer 89, to 1) the to or discuss way. any ARGUMENT I.) PETITIONER/PLAINTIFF'S In Paragraph provides a court that in connection party CPLR order in this As of the Verified relief" iñjüñctive prcl½s-y the 63 are article an application an arbitration is not §7502(c) CAUSE Petitioners Petition, CPLR under cñtcrtaiñ may with FIRST the that ARTICLE 75 have "tanperary and for -y a preF or shall mec½nhm requested ("provisional 7502(c) is pending appropriate OF ACTION: be for injunction filed which remedies"), from within a qualified days. 30 a temporary requesting restraining action. noted in " §7501(c), The provisions 62 and of articles 63 of this chapter shall apply application." The temporary dej?ñcd muñicipal rciciañt sections order restraining in section corporation eight of CPLR may hundred of the be granted seven state Article of the to restrain 63, as incorporated in an action labor law, out arising nor the performance 15 by agaiñst CPLR 7502(c), of a labor a public of statutory dispute ojicer, duties." states: "No as board or to INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 for Assr±-g dispute" "labor arise under matter in "restrain the Freedom of 75. the performance preserve to bar CPLR of action it appears or sufering action, demanded continuance produce injury As the release members of rights to the by the full and/or that an the wit, meets of the does order) a appear since to the corporation" a "müñicipal fnifill-t of not is anacanod, 7502(c) against definition of record requests to under the Repeal). by argues limit a case and (to other quo," duriñg that Article which act requested any "Uñsubstantiated the is not 75 provides defendant the basis of the current "A preliminary or injunction is about or inefectual, to a judgment the continued out that not meet the be granted may or action the where defendant subject of the the plaintif from the pendency during in any or procuring is doing respecting in any restraining or to do, rights points does - prel 75-a Article Actions" of the p!aint:f's if ccmmitted under Intervenor Pending threatens in violation relief arbitration, and the judgment which, the has commission of the action, or would plaintiff" to obtain §6301, scopeofthe produce Petitioners be temporarily, all be entitled act, required Because should would of an status to render tending and dispute restraining the authorized Petitioners' §6301, to be done, and duties" respectfully the requirements where current order. demand Petitioner's when dispute, as newly law, the (a temporary true a labor in evaluating "to relief stamtery Intervenor Further, that is especially of Information argument current is both restraining injunction of the This Court Therefore, temporary sake 807(10) article before the have pra¹Wñly, the iñjüñctive documan+s that injury grossly and they the relief have overstated ultimately 16 identified legal pending the petitioners requested, scope permanently will violate action seeks of dec===+=‰n denied must the show Plaintiffs' to avoid. to the they People, believe they that INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 cannot meet the created by Repeal, and supporting fail to articalste by released it is revealed submits of with particular care for by Further, the an Order that Based that Petitioners-in on not the only 102 or attempted to, violation of and of rights encourage that for revised newfound Access itemized pleadings, to enforce, or injury as required a violation member the Petitioners that by law will be suffered as the reflects the that any the result policy resolved of creating, status of the the of the bar on respandents Law, with release barring personal details type of found that was langasge the by appropriate and renhhg, disclesing report. investigation to this documcatation procedures. Freedom at an agreed-upon parties resolution 17 broad direct other , or b) which the the 4=r'=2 would to arrive of Repeal, and than Officers and complaints between complaint of public yet method exactly This to be intervenor instead Public or is likely of privacy. Parties not = brdned are §89. rather may of the violation the that court been members, information, original that petitioners, to ensure by has petitioners the as required senlement enforcement order protections provisions a) complaints it is respectfully law of the an unwarranted can public the family conethnte of the rights new Allegations," redactions information, the by tailor may of the the court the Pending requirements to the is now law and to a confidential accessible barred to be unsubstm±iated, members documents court the ensures finally, lead integrity that records And newly 75. alluded cited, cognizable informanen the law, body discip'dnary respective not of both phone as stated of which that to undertake cell investigative the the addresses, the Article Protections legally "Unsubstantiated to comply could, under Additional genuine, any in violation release the relief members. respectfully of but for documentation-have Petitioners' If threshold based To and or the action, intended on bar of Information to be public eroding release resolution of Law. such trust in INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 Intervenor above two would be shown in the the faith also paragraphs allowed by public that to play out at private Police (Buffalo IL) law for "39" disclesare be üñsubstañtiated, the subject rather mame," violate receiving, officers members sworn full view requested by point suggested of the to protect in the public Iñtcricñor. of Repeal assessing, Commi=sioner as As was to restore and investigating, and and in the "safeguard the serve, to Lockwood, SECOND case "44" content of Due and of future that clause have and of the not NY of the Liberty 6 (DUE "72" through complaints Process of petitioners "64" OF ACTION: CAUSE 1, ARTICLE SECTION the entire in solutions §13-9). through of the than the municipalities and the allowing manner in the PETITIONER/PLAINTIFF'S In paragraphs FOIL arbitration action Department NY CONSTITUTION that in enforcement Charter, City is a danger "spensoring process against there current Senate Buffalo health" the resolving in the cc-plaiñts of Respondents public out above-quoted of the resolving points been PROCESS) or were finalized, Constitution property Petitioners petition, "Because interests without assert found to it deprives adequate process." The 699, 708 case those name, reputation, line of particular support TT v. Dowling within that in of this position T T v. Dowling, is Lee 87 New York second (1996). Lee right cited is cases cases that "recognize or integrity, altered," couple when of being to consider a liberty ((People is invoked context is interesting courts listed interest with v David are in the where some more W., N.Y. Court the exploring on publicly accessible 18 current there 'tañgibic' of Appeal, appropriate documents case. While is some stigma interest that 95 NY2d level related Lee does to one's is affected 130 of due [2000]), process to assertions fall good or a legal the for OR Lee the INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 findings of abuse overturn inclusion appropriate parameters by An process. New the whose supported Authority A review opinion 50-a's repeal: criminal to withhold from exception the public be used to evaluate conceivably used to prevent York was awpanded oversight have the by Committee "51" was enacted police reviewing addressing outlined the new interest" "compelling folders of police sets in search witnesses. to allow forth why purpose of The problem police departments that off icer. Section agencies. Government a narrow any information of law enforcement Open Petition) in 1976 with by the courts of a police on of the personnel that contains the performance ful public meaning [1997], to 50-a. in paragraph any record virtually 783 Petitioners) informed to use in cross emmin±n iñfornation over time this narrow are that §50-a from procedure addressing 90 NY2d by New The is cited lawyers (uncited repealing indicates history defense or irrelevant unproven is that 2008 law from [1996]), abuse). parameters when report 2019 of its legislative - to prevent those legislature the May to the 1043 v DeBuono, of patient changes Further, York from accused the Miller registry; those case, 87 NY2d v Dowling, offender for due excerpt authority that sex instant for identified (an on procedure In the OO Robert (see, could 50-a is now being or revision Its repeal is long overdue. York [emphasis added] It is also worth State comprised of "Section to the due right process constitution of 20 to not of "Section "Articles", 1, Article that noting 6" the cited 1, Article basis 6" for is erroneous. each of which is divided is a typo meaning to read be prosecuted or called Petitioners' to answer law. 19 into "Article for The further second New York sections. 1, Section a crime cause in the 6," State of state constitution is the citation Assuming that New action, citation of New does York refer without INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 Intervenor the cause of therefore action application of the have such the stated new Access under article Due Process a case, the New and 1 section clause proper NY CONSTITUTION the is similarly sake a typo state required in Under both state support the must There state States claim equal right," case law equal and establishing protection the extension to the of to state any extent 50-a and they enforcing ACTION: PROTECTION) of release "Section 1, Article of newly available related and 11" than other to a legitimte permanent relief" injunctive is protection. like any records under fail entitled are person, Petitioners However, protections privacy rationally members, to cite Repeal, to equal any together authority with the New entitlemet. if a legislative clause, a compelling in order that lesser to equal releasing protection citation preliminary, law. of this OF the claim is not rights that CAUSE 11 (EQUAL f irefighters release] fcdcral a violation be demonstrated or federal and repeal failed 11." Petitioners Petitioners' that and the uphelding have or by concd+ntion, assumes 1, Section members' of the State's is no Intervenor [such Petitioners FOIL. by claim"temporary, Petitioners' a "fundamental methods, constitution 1, ARTICLE off icers and and constitutes Protections, York THIRD Petition, police be disputed under whatsoever under Buffalo to protect protection affects of the 75 purpose..." It cannot New supports created "Article professions, governmental analysis argument, meaning "gives regulated that United SECTION of this In paragraph information Court 6 of the of the Protections to the PETITIONER/PLAINTIFF'S III.) For submits respectfully state interest to sustain that regimes. the police There 20 not act impacts attainable by a "suspect less class" restrictive classification. officers are is arguably firefighters a centention are a suspect that the class privacy or INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 interests claimed NY Tr. v City petitioner by 56 AD2d Auth., Ass±g for implicate the actions the sake 1) identified a "compelling that interest (Aliessa Intervenor the cause of application of the have stated Access and of arg==t Dept Under article Process such a case, the New Protections and 96 N.Y.2d 1 section proper to inanda Fourth stated analysis A contract of this "Without the documents N.Y., 570, 84 N.Y.2d of the previsicñ cause for the Court New that such assessing least restrictive that Petitioners United York the claim Respondents' is if the means States supports have constitution or by and conctitution, the uphelding FOURTH of state serving repeal failed extension to the of to state any extent 50-a and they the new OF ACTION: CAUSE OF CONTRACT collective Affirmation Attorney's Supporting cannot of ... contract is rank 658 copy established FOIL. by accompañyiñg Asso. agrccmcñts bargaining Petitioners alleged have to be violated failed in their of Action. dismissal 565, in the test to the 6 of the of the created Supervisors [2001]). 418 PETITIONER/PLAINTIFF'S a complete Cause the submits clause (Subway-Surface have 2) identified BREACH As petitioners of privacy, respectfully right 1977]). that right v Novello, Due IV.) [2d interest" therefore action a fimdamantal 53 f½damental has (see constitute action itself, 639, and any any in a vacuum. claims recitation based of the and contrary to the best 996, 635 N.Y.S.2d 123 (1995); 643, 644 N.E.2d hearsay N.E.2d be read 1353, This on 21 alleged contract's evidence rule." v. 797 sufficient viciation terms Schozer N.Y.S.2d 620 is a failure of the through People William (1994); to justify contract. an affidavit v. Joseph, Penn Life NW Lipikti::g or other 86 N.Y.2d Ins. Co. of Corp. v. INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 Helmsley-Spear, A.D.2d 225 Kramer, The law simple Co. v New The the Jersey, supra, against "the at 21). the welfare from Home than court, (see, F2d and will of Loan be upheld by cl I, § 10, Schiffren 1998); a State [1]). from v. passing any despite However, United (see, States v Blaisdell, must 771, supra; Steel see also, be m==4=4 if it is reasonable necessarily this States Trust has stated, and of the reserved by US 398, test it to determine v Sp::::::s, of the necessary States to at 21 supra, 435]). if it is "substantial", US 234, US 451, 194 nature v New Co. individual the Jersey, 438 v Mills, Trust rights v New Co. Court States 290 Davis in light contract Trust Co. Supreme ( United the ... the concern, Constitution power' Structural of balancing ( United Assn. type the an impairmeñt, it must prohibits are meenstiMtional this sovercigñ Allied 766, is substantial, legislation, is found found art Dep't 1996). Cons6Mtion contract" under citizens" & Bldg. having I, 940 impairment answer of their Dep't Const, in addressing attributes theoretical of Surrogates of is permitted The 'essential The rather impairment (U.S. (1st 488 supra). 1, 21, question" (2d 175 States contracts impairments US "difficult is whether safeguard "all 431 Jersey, of United N.Y.S.2d 670 305, N.Y.S.2d 640 of the obligation not 304, 758, Clause the langasge, [quoting 757, Centvaet impairing A.D.2d 248 Inc., and 456). purpose to accomplish 244; Association If the of the State a legitimate public purpose. That "because Jersey, of the supra, An Fin. Auth., when said, [possibly] State impairs self-serving its nature own contracts, of the legislation" a more searching (United States analysis Trust is required Co. v New at 25-26). instructive 959 the F3d case 54 [2d is the Cir 2020 2nd Circuit decision 2020]). 22 (Sullivan v Nassau County Interim INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 In Sullivan, a contract contracts to the was accomplish teachers' a contrary. not In ruling passed to be a legitimate public As we stated in Buffalo on whether "focusing are some indicia Guido 1191, 1200-01 Thus, "less In this the or challenging conduct of tending those a proper to a wage impact reasonable "less and deference" despite freeze, on etendhg to necessary then "less Powers requires scrutiny 464 F.3d at 370. If there "the government benefit," when only on its [rcñcging] deference" is scrutiny & Contractual to receive 71 Yale Changes, is where to the new discovery have and L. J. ameded new some evidence of "genuinely 290 U.S. acting at 445); cf 134 L. Ed. 2d 687 (1996) of discriminatory selective prosecution for the United (requiring before a on that defense). broad examples Petitioner's provisions, constitutional stated instead Blaisdell, 116 S. Ct. 1480, existence" has put forward in reneging 464 F.3d at 370 (citing concrctc 50-a the plaintiff has engaged to show the providing references was to apply is merely Paramount applies Teachers, Petitioners this its resulting self-serving." law is 517 U.S. 456, 468-70, repealed Further, all scrutiny BuWalo case, led (1962). is entitled withõüt Legislature omitting Retroactivity: Calabresi, that stated: whether for its own act and rather Court impairment the contract evidence defendant but determining that the contract States v. Ariñstroiig, "some legisladen the purpose, Teachers, deference" good." public the "self-serving" to show that the government tending concerns, that a legislative the contract-impairing obligations-altering needed. ch"=ged union assertions of FOIL for attempt provisions Petitioners either. to of FOIL try analysis. 23 of reputational Howcycr, a reason "own are the not related narrative" so critical to deflect-or they damage have regarding completely safety to assert failed to the to consider. and public good. Repeal By not disable-the that by evoking INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 To evaluate risk a question to identify like the the the of religious actual instant posing Petitioners' an analogy, liberty government while Petition, question doesn't approach current loudly "Free stating case creating the alleged civil asserted are certaiñly rights in the record all e'ements the is like speech mechanism the place by in the stake!!!" is at violation of to while free failing speech. the important, needed a court asking Just manner to conduct of the examination. evidcñce compelling for purely with the the in Exhibit F of the Legislature repealed as showñ Mcañwhile, that public and good, of privacy the provided impacted any it is well-settled Further, 50-a 1 the law Supporting enforcement is the New Protections in FOIL to balance that compelling interest enacted is needed employees. agency government that and there Affirmation, Attorney agencies cannot agree contractually to violate FOIL. it has Significantly, of cannot confidenality confidentiality. Services In [415 of grounds for a decision promise within make Gannett N.Y.S.2d denial rendered any Legislature's reference not by the to the definition to information v. and that of of Appeals, intervenors of Alcoholism abuse. court The records held FOIL. 'confidential' 24 and conf‰tiality is irrelevant as a promise or assertion confers were Law Information under that guarañtced the it was 'record' labeled Office drug Freedom of circumstances speci&ally agency conceming in the Court Inc. a state sustained, of a statute Service (1979)], be in a variety unless survey appearing of conjidentiality the News 780 could conñdenality held be upheld, in a statistical participating been that The by determined could that for jmtibbly agency's the dej?ñition the Abuse to schõõl available, a state to whether Substañce agency; districts the promise none of the be asserted. In "...long-stading requested does documents not exclude conjidentiality fit or is INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 relevant Post RECEIVED NYSCEF: 08/17/2020 when only v. New Co. enforcement and York cause of action of the have Access and Due Process such a case, the New Protections are basis which of states proper of the created as a matter and of apart 565 are now New York constitution supports "record" the under be Petitioners have and repeal failed extension to the of FOIL, sustained. or by concdwion, uphelding "Law cannot that States (1984)]. a records [Washington 50-a any extent and to state they the new FOIL. by CAUSE FIFT11 cause of law, which from the action is found pleads: ACTION: OF LAW "86" in paragraph "Unsubstantiated of New existence OF BY ERROR AFFECTED fifth 557, Court United analysis such exempt..." of it is to the 6 of the 7803-ACTION separate confidential, clause Petitioners' § 866) of PETITIONER/PLAINTIFF'S CPLR Petition FOIL by submits 1 section a portion 61 NY2d confidentiality respectfully article or record as defined regardiñg under V.) The the Department, records" therefore application stated Insurance or agreement Intervenor the State disciplinary a promise whether determining York and State of the Verified Allegations Pending civil rights law section 50-a." Petitioners on any "The legal information retired are defined definition still resulted Paragraph settlement and members as well pending, also states: to be would of the as matters or in exoneration, "Unsubstantiated appears term, to be released active "1" of which "...This and drawn from Buffalo which Police were Paragraph relate necessarily and "1" members information would agreements." 25 who also were otherwise necessarily which based states: both matters not that which unfounded, found concern is not against including which were Petition, matters Departments, unsubsmded concerned of the to disciplinary Fire which Allegations", Pcñdiñg guilty...." confidential INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 This expansive and Department, the Public retention For Title Buffalo available nor inappropriate Respondets It does New the is wholly from Department. Law, the current York "Retention Records"("LGS-1")1 law (including of not to ev±ating of Buffalo, City draw from an assertion Buffalo definitions Archives' State Official enforcent to Buffalo lists Disposition Sec6en of Police - the - must agencies) Compilaties Respondents and which pursuant legally, 8 of the requires Fire Officers example, Government disposed is now definition in the regulations for Police, Civil document Rules Codes, Department length retain of the 57.25 --¬ their Arts and and of time records Regulations the York that local before Cultural to maiñtah New for Schedule Affairs of the they Law, government may be and Part of New State eategories following Local Law Enforcement: or complaint, when General arrest or records Criminal Justice NOTE: Copies below. summa.y data are not Services or pre-1950 log submitted data MU1 559, or record (DCJS): of records Most CO2 + 1220 New have Incident, York State of activities, Division of PERMANENT RETENTION: records 458 a summa.y containing to the to DCJS submitted MIl 521, historical are covered under item value. AND Personnel/Civil The 2020 version Intere::tingly, service: of this document the current version 637 CO2 392, is fully available Respondent features MUl 365, ED1 200, MIl 311 at www.archives.nysed.gov/-----'seMyes/files/lgs1.pdf. Buffalo 26 City Hall on the front cover. 185, York, of records permanently: 1221 Service municipalitiet by officials imprecise docum-tation as to what law, and no. INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 Investigative records statement or letter correspondence: NOTE: has between In and item by there words, incident, no. of decision, of appeal after may final letter decision in a union contract action to and rendered before Af)irmative limited of termination procedure, be destroyed either not and this retention or settlement related cczp!±:s 643c. by Buffalo law and Police or arrest complaint, item employee. exists Respondent by this if specifled reached, notice 3 years by employer the other employee regulation both Department known records su-rry a defined as "law a defined document general" enforccacñt AND or logs, of category that for category discipline. New Since of been be covered mai-+-ined i-cludes covered includiñg record of reinstatement, but proceediñgs, of hearing, RETENTION: Records period disciplinary transcript of charge, resignation, may and them, elassifying Iñtericñor York State along or permanent categories with the suggests respectfully prelimi=y, regulation set forth in of that said, required to the iñjüñction either FOIL prescribes precise duration Court which further any LGS-1, of records such rather with records contemplation or restricting addressing or in the for types Access should means be retained, of a temporary, should use Respondents' than precise the precise improvised terminology. All any other including require law purportedly the different redaction of other than barring sections certain the now-repealed the release of the information. Public 50-a, of public Officer's Given this 27 the Respondets' safety-related Law that imprecision Petition materials. do actua"y and lack No does not other law- limit disclosures of recital of cite or a specific INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 law barring proMbition any recognizable "error With no Petitioner's of the law Fifth there cited, entire upon the conclusion calmet Petitioners records, that be a basis for made by case circumstances one AND PD analysis of each have unsubstantiated that "...it internal and dash not listed of abuse allegations, of record. of discretion over the disclosure since type thus, ACTION division whether any and OF ACTION: is an affairs especially pending in error, restrictions CAUSE to determine case applied CAPRICIOUS claim to the was further SIXTH Petitioners action, a case concerns last fve years is warranted a substantial portion of which many to release were based of this completely unfounded." or This capricious recital does action Respondents FOIL, of of complaints unique be no 7803-ARBITRARY cause performing information false six record without can of Action CPLR the safety-related PETITIONER/PLAINTIFF'S VI.) In their of public law." of Cause rcicase Petitioners' the of course, members. Respondents (e) could are compiled iv. reveal techniques not give enforcement law of a right the to a duly unrestricted a FOIL investigative and arbitrary fact that in the submitted request event under to all per Section request, and trial disclose which, or judicial investigations or access records pertaining 86(2)(e), are: purposes to a fair source regarding or would: if disclosed, proceedings; impartial adjudication; confidential information or procedures, except relating or investigation; and People that enforcement law ignores be in response under law a confidential criminal the even example, or case to fulfill. for with criminal does obligated records a person identify be factor It completely it may out i. interfere iii. request. give ii. deprive will For not established any information, respondents FOIL, list a FOIL involving release which not techniques procedures; 28 routine to a to INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 In p'r=ding approach, how on citation and Open Government's Verified Order draws Prr' Although one the standard The memn- in a perm When repealing "Due enforcement to the found rather 50-a miscoñduct that areas and that to the public regarding a lesser are required records duties are available, for disclosure than an unwarranted not or the FOIL, ==r=di=g invasion records resulted to victims that in criminal ofpolice the privacy than are relevant Restraining that pre-date others, for than to the would privacy. in their or findings against excessive brutality, of of public accesstaMs stated charges Support to conflicting of personal of complaints In times in such instances Legislature " states: to be more rule, from truly Cr--½c to the of privacy degree nor Temporary drawn (17195) direction a shotgun capricious. of Law Seeking obviuüsly as a general that, and citations and may be subject enjoy they the use obligation, "arbitrary Cause apiñions substantial legal Memorañdum Show are again actual being except law, is flexible of § 50-a, have to which employees to any Petitioner's (see privacy Petitioners or risks of advisory contexts official sible was 34), cited public interpretation inaccessible entirely have of one's result that them Order have provided in various courts performance page of Action, connecting Proposed concerning It is clear it has been found others. other of those the courts interpretations, employees. from injunction, even yet, Petitiõñcrs Cause Opiniana and -½ñ And Repeal. by "Advisory Petition/Cemplaint and not action argument Sixth but factors, asserted any their supporting various listing showing All and sp0ñscring of law officer an are use offorce, permissible, the almost or other misconduct." that By legislatiñg Legislature has, in the 17195, legislated greater accountability. that "records phrase the used "context" of by of complaints the "law or Ces±:c enforcemeñt 29 fiñdiñgs" on Open are now Government discipliñary records" in Advisory requires Opinion now INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 Petitioners but FOIL, classes the access, Respondents, on now redâetions to argue authorities very of which attempt may cite they context-specific the other includes are hands, "law by decision and enforcement allegations, (a) the complaints, (b) the name of the employee the agency's Failure to follow Department to do VII.) against an employee; of or charged; or hearing, including any exhibits factual findings "Unsubstantiated D) and and City be of Buffalo, a violation arbitrary Buffalo of the one. appropriate introduced at such trial and discipline of the conduct Police imposed and appropriate and law, and Department, the following SEVENTH However, City violate of the court law will Buffalo be Fire but anything contract a declaration would and Petitioners; the Equal B) of that violate A) violate Protection in violation OF ACTION: CAUSE JUDGMENT to issue Allegations" Pcñdiñg C) breach and asked the Constimtion; Intervenor this have between cons6Mte the disposition and its analysis PETITIONER/PLAINTIFF'S Petitioners State with of FOIL, and charges DECLARATORY agreements requirements records," disciplinary access. capricious." and "arbitrary so will the different definitions, of to employee. Respondents by on precise changes including: complained complete of the covered significant a presumption always, of any disciplinary trial (c) the transcript or hearing; of any disciplinary and proceeding; (d) the disposition or memorandum (e) the fmal written opinion supporting including discipline ignore-the based obligated legally of FOIL, § 86(6) flat-out support protections, releasing as defined around-or Clause sett'==t the the due of the "publication" collective process New agreements; of bargaining clause York E) of the State New York Constitution; be a violation of law, capricious. has addressed it bears the repeating defects that of the at no point 30 above-listed do Petitioners claims in the assert that sections preceding Respondents INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 08/17/2020 "law disclosing 12, is the 2020, basis of judgmt declaratory should be of their any FOIL, finding jud,--cnt declaratory records" disciplinary as amc=ded FOIL, action enforcement June 12, Further, there as amceded, violates the is the law Pe+itioners by and dismissed, with complaints. 2020, as requested in compliance Intervenor of the should should is no New York denied be be granted claim all his or monen on for June a Constitution. of New State as amer.ded FOIL, On that York. Petitioners' of FOIL pcñdiñg basis, causes of request. CONCLUSION For of any Civil the further Law For the or records into For related prior the of A) law the B) a violation should due not to the have may to the 87 and 86, an injunction due to the lawful disclosure repeal of 89 of FOIL. enjoin lawful been public the barring the repeal addressed disclosure of per of Civil Law Rights settlement information any 50-a, agreements 2020. reasons, this enforcement collective Court should not bar records, disciplinazy agreement bargaining and Comp¹rirrrt/Petitioners, break that §§ issue in any way the available newly or pubh=+ian release to the public due to the as: 50-a, No 12, foregaiñg ,of Court public not accessible this to reports should newly of to the to June Court amandment reasons, accessible information repeal and foregoing those entered or records § 50-a newly includi-g of information Rights this reasons, foregoing in any event, has any been clause entered of any such into the contract record by cannot be enforced law; Pentioners of the have due process not demanstrated assured by that the New 31 any York such newly state lawful Caneth+ian; release would constitute to INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 C) the equal Petitioners assert E) the have not release of have would be arbitrary The Articles relief 75 Further, this that New state York entered such not into the and lawful newly release would violate Constitution; record language any material how would such any from settlement any contract violate; release of newly accessible capricious; Petitioners by such any available newly demonskated requested and demanceated of the Petitioners information F) not clause Petitioners they CPLR have protection D) that RECEIVED NYSCEF: 08/17/2020 exceeds the authority Officers Law of the Court as govemed by 63. Court should find: A) That Respoñdeñts must B) That Respandants may abide not by Public negate their obligations §§ under 86, 87, FOIL and via 89; contracts or policies; C) disclosing D) that conform E) future them under That if there the to the or as soon all Respondents records" disciplinary Court That is any FOIL further as defined and as thereaner That redact properly "law enforccsent records" disciplinary before FOIL; Respondcñt's law, must Respondent requests, by record in no on it be only FOIL, management event, practicable City restriction that (as as required by for that policies such delay goverñcd of Buffalo Respondents' by must should FOIL grant FOIL. 32 and release period 60 "law enforcement needed of time procedures exceed of have days been aRer to assure the adjusted to June 12, 2020, §87(1)(a). Intervenor's pending FOIL request, and INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 For application Dated: RECEIVED NYSCEF: 08/17/2020 all the by Petitioners Buffalo, August reasons, foregoing for Intervenor an injuncEen and requests respectfully dismiss the that Petition with the court deny the prejudice. NY 16, 2020 submitted, Respectfully By:/Stephanie A. Stephanie A. The Law 363 Grant Esq. Adams, Ofñce of Stephase Suite Street, NY Buffalo, Adams Adams, PLLC Adams, PLLC 1 14213 716.464.3386 adams@losapilc.com By: s/Jessica Jessica M. The Law 363 Grant Buffalo, M. Ofñce James Gilmour Gilmour & 85 Main Street, Killelea, LLP Hamburg NY 14075 Phone:716-648-6250 E-mail:gilmoujAService Other via htmail.com E-mails:jmorris@morganpc.org NYCEF 33 of Street, NY keltz@losapilc.com John Esq. Keltz, 716.464.3386 TO: Keltz 14213 Stephanie Suite 1 FILED: ERIE COUNTY CLERK 08/17/2020 10:52 AM NYSCEF DOC. NO. 39 William CITY Service Mathewson OF BUFFALO Sq, Buffalo, DEPARTMENT NY OF LAW 14202 851-5957 Phone:(716) via RECEIVED NYSCEF: 08/17/2020 Patrick 65 Niagara INDEX NO. 807664/2020 E-mâil.wmathewseñ@city-buffalo.com NYCEF 34