Updated: 9:21 p.m.
A state Supreme Court judge has at least temporarily blocked the release of most disciplinary records of Buffalo police officers.
Judge Frank A. Sedita III, responding to a complaint from the Police Benevolent Association and Buffalo Professional Firefighters Association, issued a show cause order Friday afternoon that prohibits the release of most disciplinary records until a hearing scheduled for Aug. 26.
The police department has received several dozen requests under the Freedom of Information Law for disciplinary records since the state repealed 50-a, a state law that shielded from public disclosure the personnel and disciplinary records of police and corrections officers and firefighters. The repeal followed the killing of George Floyd in Minneapolis and demonstrations across the country, including New York, against racism and police violence.
Advocates of the change said 50-a thwarted transparency and accountability and effectively protected bad cops. Opponents argued disclosure amounted to an invasion of privacy that would ruin the reputations, and potentially livelihoods, of officers.
Capt. Jeff Rinaldo, spokesman for Buffalo police, told Investigative Post the department has received the injunction and will consult with the city’s Corporation Counsel. Rinaldo said the department has received several dozen FOI requests for disciplinary records since the repeal of 50-a and has fulfilled most of them.
Sedita’s order greatly restricts what the department can release until the hearing next month. The department is barred from disclosing records on matters investigated by Internal Affairs prior to enactment of the law on June 12, except those that resulted in a finding that confirmed the original complaint. That is, a guilty verdict. It’s unclear if a finding of fault resulting from a negotiated settlement can be released.
Put another way, Sedita’s order means the department cannot release records of investigations where the results were inconclusive or the officer was cleared. Information on pending cases can’t be released, either.
Sedita’s order appears to also prohibit the release of most case summaries, which provide details of what Internal Affairs learned during individual investigations.
The police union, in the court complaint filed Wednesday, contends the department’s release of records violates state law and its labor contract with the city. The union maintains it’s not trying to suppress the release of records involving cases where officers were found at fault, but that documents related to other investigations should not be disclosed.
In its complaint, the PBA said:
“This is not a challenge to the disclosure of proven and final disciplinary matters, i.e., those that have at least been vetted through an evidence-based investigative and adjudicatory process that includes basic due process protections.
“This is a challenge to protect the rights of Petitioners’ members, which already have been, and will continue to be violated if Respondents continue to release these Unsubstantiated and Pending Allegations in the coming days and weeks.
“No actual evidence is required to make a complaint against a Buffalo Police Officer or Firefighter. False or otherwise meritless claims can be brought against members of the Police and Fire Departments based upon any number of nefarious or malicious motivations.”
The filing of the legal action followed a July 18 email from the union’s lawyer in which he appealed to the city to stop releasing disciplinary records.
In addition to the legal complaint, the PBA filed two grievances related to the release of disciplinary records.
One grievance focuses on the disclosure of the disciplinary card of Lt. Michael DeLong, who was suspended for 30 days without pay on July 1 after being captured on video calling a woman a “fucking cunt.”
DeLong’s disciplinary card, obtained by Investigative Post and several other news outlets under the state’s Freedom of Information Law, showed he has been investigated 36 times by Internal Affairs during his 20-year career. Twelve of the investigations involved allegations of inappropriate use of force; three involved domestic incidents. The records also showed DeLong was suspended four times previous to the June 28 incident.
The union’s grievance, filed July 10, contends that under the terms of its labor contract, the release of DeLong’s disciplinary history should have been limited to the last five years and only disclosed investigations where he pleaded guilty to charges. The release of his full history, the grievance said, “has led to the lieutenant’s undue stress, ridicule and unwanted negative attention.”
The grievance seeks compensation of $100,000 for DeLong for what it called “defamation of character.”
In a separate grievance filed Tuesday, the PBA said the release of disciplinary records of other officers also represent a violation of the contract. The union demands $100,000 for each officer whose records were improperly disclosed.
De’Jon Hall, a member of the Police Advisory Board, spoke to Investigative Post earlier this week after the police union in New York City took legal action. He said a similar court ruling in Buffalo “would do harm to the transparency that the public greatly desires.
“Police departments have had a great deal of mystery around them for a great period of time, not just with discipline but with the contracts. We live in an era now where information is usually readily available; when its not there a cause for concern for a lot of people.”