INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/31/2020 04:26 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/31/2020 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE BUFFALO POLICE BENEVOLENT ASSOCIATION, INC., and BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCIATION, INC., LOCAL 282, IAFF, AFL-CIO, Index no. 807664/2020 Petitioners/Plaintiffs, Hon. Frank A. Sedita, III v BYRON W. BROWN, CITY OF BUFFALO, BYRON C. LOCKWOOD, BUFFALO POLICE DEPARTMENT, WILLIAM RENALDO, and BUFFALO FIRE DEPARTMENT, Respondents/Defendants. AFFIRMATION OF WILLIAM P. MATHEWSON IN SUPPORT OF MOTION TO DISMISS I, William P. Mathewson, an attorney admitted to practice law before the courts of the State of New York, and not a party to the above-entitled matter, affirm the following to be true, to the best of my knowledge, under the penalties of perjury pursuant to CPLR 2106: 1. I am an Assistant Corporation Counsel for the City of Buffalo and attorney for the above-named respondents, and am familiar with the facts and circumstances set forth below. 2. I submit this affirmation to support respondents’ motion to dismiss the petition/complaint (“petition”), a copy of which is attached as Exhibit A. 3. Respondents have also filed a memorandum of law in further support of their motion to dismiss. 1 1 of 7 FILED: ERIE COUNTY CLERK 08/31/2020 04:26 PM NYSCEF DOC. NO. 78 4. INDEX NO. 807664/2020 RECEIVED NYSCEF: 08/31/2020 This proceeding arises due to recent changes to the statutes governing public access to law enforcement disciplinary records. 5. Until recently, agencies could deny access to law enforcement “personnel records used to evaluate performance towards continued employment or promotion” (Civil Rights Law § 50-a [repealed June 12, 2020]). 6. Pursuant to former Civil Rights Law section 50-a, respondents previously denied access to petitioners’ members’ disciplinary records, because respondents used these files to evaluate petitioners’ members’ performance. 7. Section 50-a was the only basis on which respondents could categorically deny access to petitioners’ members’ disciplinary records. 8. On June 12, 2020, following increasing demands for public access to law enforcement disciplinary records, Governor Andrew Cuomo signed into law a bill to repeal section 50-a. Copies of the bill and accompanying sponsor memo are attached as Exhibit B. 9. The legislature recognized that section 50-a had been narrowly construed to prevent access “to both the records of the disciplinary proceedings themselves and the recommendations or outcomes of those proceedings” (Exhibit B). 10. The legislature found that this narrow interpretation of section 50-a undermined the public policy goals of the Freedom of Information Law, Public Officers Law sections 84—90, “which are to make government agencies and their employees accountable to the public” (id.). 11. The legislature therefore repealed 50-a to “help the public regain trust” in law enforcement officers and agencies (id.). 12. The repeal of section 50-a was accompanied by amendments to the Freedom of Information Law. 2 2 of 7 FILED: ERIE COUNTY CLERK 08/31/2020 04:26 PM NYSCEF DOC. NO. 78 13. INDEX NO. 807664/2020 RECEIVED NYSCEF: 08/31/2020 The Freedom of Information Law now provides that law enforcement disciplinary records are publicly accessible. 14. The Freedom of Information Law defines “law enforcement disciplinary records” as “any record created in furtherance of a law enforcement disciplinary proceeding” (Public Officers Law § 86[6] (emphasis added)). 15. “Law enforcement disciplinary records” include, notably, “the complaints, allegations, and charges against an employee,” (Public Officers Law § 86[6][a]), as well as “the disposition of any disciplinary proceeding,” (Public Officers Law § 86[6][d]). 16. The Freedom of Information Law does not provide that records pertaining to unsubstantiated or pending allegations are excluded from the definition of “law enforcement disciplinary records.” 17. Despite the recent amendments that provide for increased transparency of law enforcement disciplinary records, the Freedom of Information Law continues to protect law enforcement officers’ privacy and safety by providing that portions of law enforcement disciplinary records “shall,” (Public Officers Law § 87[4-a]), or “may,” (Public Officers Law § 87[4-b]), be redacted. 18. Agencies shall redact information regarding law enforcement officers’ medical histories, home addresses, telephone numbers, email addresses, social security numbers, and participation in an employee assistance program (Public Officers Law § 89[2-b]). 19. Agencies may also redact records pertaining to “technical infractions,” (Public Officers Law § 89[2-c]), which are minor rule violations related to administrative departmental rules, (Public Officers Law § 86[9]). 20. In addition, law enforcement disciplinary records are still afforded the general privacy protections previously provided for by the Freedom of Information Law. Agencies 3 3 of 7 FILED: ERIE COUNTY CLERK 08/31/2020 04:26 PM NYSCEF DOC. NO. 78 INDEX NO. 807664/2020 RECEIVED NYSCEF: 08/31/2020 may redact or withhold records if disclosure would “constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87[2][b]). Agencies may redact or withhold records containing personal information whose disclosure “would result in economic or personal hardship to the subject party” (Public Officers Law § 89[2][b][iv]). Agencies may also redact or withhold records that “if disclosed could endanger the life or safety of any person” (Public Officers Law § 87[2][f]). 21. The Freedom of Information Law therefore explicitly allows agencies to consider law enforcement officers’ personal privacy, economic or personal hardship, and safety when determining to redact, withhold, or disclose law enforcement disciplinary records. 22. Petitioners do not allege that the provisions of the Freedom of Information Law concerning law enforcement disciplinary records are ambiguous or otherwise require judicial interpretation. 23. Instead, petitioners argue that respondents may not disclose certain types of law enforcement disciplinary records—those concerning unsubstantiated or pending allegations—pursuant to terms in the Collective Bargaining Agreement and subsequent memorandums of agreement modifying the Collective Bargaining Agreement (collectively, “CBA”) between respondent City of Buffalo and petitioner Buffalo Police Benevolent Association, Incorporated (“PBA”). A copy of these terms is attached as Exhibit C. 24. Petitioners do not allege that similar terms exists in any agreement between respondents and petitioner Buffalo Professional Firefighters Association, Incorporated. 25. The portion of the CBA cited by petitioners concerns Buffalo Police Department Internal Affairs Division (“IAD”) files, and provides that after five years any 4 4 of 7 INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/31/2020 04:26 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/31/2020 incident resulting in anything other than a guilty plea finding will be expunged from an officer’s file (see Exhibit C). 26. Petitioners seem to interpret the CBA to require respondents to completely destroy disciplinary records concerning unsubstantiated allegations after five years. 27. Petitioners also seem to interpret the CBA to prohibit respondents from publicly disclosing unsubstantiated or pending allegations, even though the CBA does not reference pending matters or address the issue of public disclosure. 28. Each cause of action outlined in the petition relies on petitioners’ belief that the CBA requires respondents to treat disciplinary records pertaining to unsubstantiated or pending allegations differently from other law enforcement disciplinary records, despite respondents’ clear obligation to disclose any law enforcement disciplinary record pursuant to the plain language of the Freedom of Information Law. 29. The petition asks the court to review what the CBA, rather than the Freedom of Information Law, requires. 30. Respondents interpret the CBA to require that a record of a disciplinary action resulting in any disposition other than a guilty plea must be removed from an officer’s IAD file, such that respondents may not use said record to evaluate an officer’s performance or withhold promotion, but not completely destroyed or withheld from public disclosure (see EXPUNGE, Black's Law Dictionary [11th ed. 2019], defining “expunge” as “to remove from a record”). 31. Regardless, this proceeding is not the correct forum to address any disagreement between petitioners and respondents as to what the CBA requires. 5 5 of 7 INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/31/2020 04:26 PM NYSCEF DOC. NO. 78 32. RECEIVED NYSCEF: 08/31/2020 As described in the accompanying memorandum of law, respondents have not made a final determination regarding petitioners’ members’ disciplinary files that is subject to judicial review in an Article 78 proceeding. 33. Even if respondents had made such a determination, petitioners are required to exhaust all available administrative remedies prior to seeking judicial review. 34. The CBA provides for grievance and arbitration procedures to resolve any dispute that may arise between the City of Buffalo and the PBA due to differing interpretations of the CBA. Attached as Exhibit D are relevant portions of the CBA governing said procedures. 35. Pursuant to the grievance and arbitration procedures, petitioners must first submit a grievance to the affected employee’s immediate superior (see Exhibit D). 36. If a satisfactory settlement or disposition is not reached, the employee may then appeal to his next immediate superior, and, if necessary, may submit a further appeal to the Commissioner of Police (see id.). 37. If the matter is still unresolved, the CBA provides for grievance triage sessions heard by a master arbitrator, who may resolve the grievance or submit the matter to expedited arbitration (see id.). 38. If the grievance cannot be resolved through expedited arbitration, it shall be scheduled for traditional arbitration (see id.). 39. The CBA therefore provides for numerous levels of administrative review at which petitioners’ grievances pertaining to their members’ disciplinary records may be settled or otherwise resolved prior to judicial intervention. 40. Petitioners acknowledge that they are aware of these procedures, and the PBA has already submitted grievances to respondent Buffalo Police Department (see Exhibit A). 6 6 of 7 INDEX NO. 807664/2020 FILED: ERIE COUNTY CLERK 08/31/2020 04:26 PM NYSCEF DOC. NO. 78 41. RECEIVED NYSCEF: 08/31/2020 The court should allow petitioners to exhaust the administrative remedies provided for in the CBA. 42. Until petitioners do so, the court lacks jurisdiction to review whether terms in the CBA require respondents to prevent public access to law enforcement disciplinary records pertaining to unsubstantiated or pending allegations. 43. Moreover, the court should not order a preliminary injunction enjoining respondents from disclosing unsubstantiated or pending allegations while petitioners exhaust their administrative remedies. 44. As set forth in the accompanying memorandum of law, petitioners have not shown that a preliminary injunction is warranted. WHEREFORE, respondents respectfully request that the court dismiss the petition in its entirety. Dated: August 30, 2020 Buffalo, New York s/William P. Mathewson William P. Mathewson Assistant Corporation Counsel 7 7 of 7