Court Rules Schenectady Police Officer’s Disciplinary Records Cannot be Withheld

Thwarting union lawsuit, records must be disclosed post 50-a repeal

SCHENECTADY – In a victory for police transparency and accountability, New York State Supreme Court Judge Mark Powers issued a decision yesterday mandating that disciplinary records concerning Officer Brian Pommer be disclosed under state Freedom of Information Law (FOIL). The NYCLU was one of the organizations that submitted a state FOIL request for several of Officer Pommer’s disciplinary records after Pommer was recorded on video kneeling on Yugeshwar Gaindarpersaud in July in a manner that resulted in public outcry, weeks after George Floyd’s killing. The Schenectady PBA filed a lawsuit to prevent the release of Pommer’s records, to which the NYCLU in partnership with Winston & Strawn LLP sought and obtained intervenor status in October and subsequently filed the opposition.

“Today’s decision reaffirms that the public has the right to police misconduct complaints, and that the police union cannot ignore the fact that police transparency is now codified into law. The court was crystal clear: The repeal of 50-a means that all complaints must be produced under FOIL, and that FOIL’s privacy exemption cannot be used to re-establish 50-a under another name. We will fight resistance to accountability wherever we see it and continue working to end the secrecy shrouding evidence of police violence and misconduct across New York state,” said Bobby Hodgson, senior staff attorney at the New York Civil Liberites Union.

The lawsuit is part of a statewide police transparency campaign in which the NYCLU, with pro bono counsel from Latham & Watkins LLP, Milbank LLP, Shearman & Sterling LLP, Kirkland & Ellis LLP, Winston & Strawn LLP, and Simpson, Thacher, & Bartlett LLP, filed state FOIL requests with twelve police departments statewide and the New York State Department of Corrections and Community Supervision requesting data about police and correctional officer misconduct with particular attention to the appearance of patterns of race-based policing.

“This precedent-setting decision confirms that the repeal of Section 50-a and corresponding amendments to FOIL provide the public with a broad right of access to police disciplinary records.  As Judge Powers set forth: there is no ambiguity in the new statutory scheme. We are proud to represent the NYCLU in its critical mission to increase police accountability,” said Sofia Arguello, partner at Winston & Strawn LLP.