The Chief
January 26, 2007

Rule NYPD Can Withhold Officer Files From PA

Has Effect of Blocking Transfers to Gain Higher Pay

By REUVEN BLAU

A State Appellate Division panel has reversed a lower-court decision ordering the NYPD to release the personnel records of 35 of its officers seeking to transfer to the Port Authority Police Department.

RAYMOND W. KELLY: Court won't overrule him.     
RAYMOND W. KELLY: Court won't overrule him. .  

Last winter, the Patrolmen's Benevolent Association sued the NYPD, charging that it was purposely withholding the information in an attempt to prevent the officers from switching to the better-paying Port Authority.

'Didn't Provide Proof'

The State Appellate Division, First Department reversed Manhattan Supreme Court Justice Sheila Abdus-Salaam's March 2006 ruling, which ordered the NYPD to allow the officers access to their entire files (excluding information relating to present investigations) and permit investigators from the Port Authority to review the records together with the cops at Police Headquarters.

"The court improperly granted the ultimate relief sought," the six-member panel ruled. "The court abused its discretion by granting a preliminary injunction without requiring petitioners to provide an adequate showing [that] they are entitled to such provisional relief."

A PBA spokesman said the union "strongly disagrees with the decision." The spokesman added, "It was a policy that was clearly initiated to stop the hemorrhaging of police officers from the NYPD for better-paying jobs."

The officers stand to earn 50-percent more by working for the PAPD, which has a maximum salary of $90,000 after five years on the job. By contrast, NYPD cops currently receive $59,588 after 5-1/2 years' service.

Case's Fate Up to Cops

It is unclear what the next step for the cops will be. "The officers who mounted the suit will have to decide if they want to further pursue legal action," the union spokesman added. One of the officers turned 35 in August, which would under normal circumstances place him over the PA's age limit and bar him from joining the department.

At the hearing last February, the officers' union attorney noted that they had each received a letter from the PA stating that the agency had been unable to verify and examine their prior employment, which resulted in their candidacies being deferred.

City lawyers, however, contended that the officers and the PA could obtain some of the personnel information via Freedom of Information Law requests. They also claimed the NYPD changed its policy regarding releasing personnel files in 2003 as a way to avoid legal liability. "The Police Department doesn't have a request from the Port Authority saying we don't have what we need," claimed city attorney Cindy Switzer.

The Appellate decision noted that in order to obtain a preliminary injunction, the petitioner must prove the "likelihood of success on the merits ... irreparable injury absent the injunction," as well as "a balancing of the equities in its favor."

Commissioner's Discretion

In this case, the Police Commissioner - who has broad powers under the City Charter - has the discretion to change the policy, the Appellate panel ruled. "In addition, petitioners failed to identify any statute or rule giving the nonparty Port Authority the legal right to review petitioners' personnel records," the decision stated.

The court also ruled that the officers didn't prove that they would suffer imminent and irreparable harm without the injunction in place, because none of the cops were guaranteed jobs with the Port Authority, as they were all subject to additional screenings.

The officers' union attorneys, however, maintained that the NYPD has refused to release key records which the Port Authority uses to check the veracity of the officers' interview responses. Other agencies, they noted, often make the officers take a polygraph test to confirm that the information from their personnel files matches their interview responses.

As for getting the data through FOIL requests, PBA attorney Richard Steer said last winter, "The Port Authority doesn't want some copy that the officer gets."

Questions Urgency

The Appellate panel, however, concluded that it was unclear whether the Port Authority established a deadline for reviewing personnel records. "Therefore, at the very least, there is an unresolved factual issue regarding whether there is an immediate and urgent need for the records," the decision stated.

The officers argued that they were not hired and included in the training class last year solely because the NYPD denied PA investigators access to their personnel files.

The NYPD argued that it established a new policy in 2003 regarding employee access to personnel records. Under the new procedures, officers are allowed to examine their own personnel records, but a third party may not accompany them nor can they copy any part of their files.

Since June 2003, the NYPD has provided certain Federal law enforcement agencies looking to hire current and former city officers with additional information, including whether there are any serious, negative notes in the officers' files, a city attorney said.

The Appellate panel cited that policy provision and concluded that the Police Department must be able to control and dictate who has access to its employees' personnel records. "As for the ultimate merits of the underlying petition, we note respondents' concession to provide petitioners with the same access as they provide to Federal agencies under similar circumstances," the ruling stated.

"We are very pleased that the court, in reversing this injunction, underscored that the Commissioner may properly exercise discretion to restrict access to personnel records," said Jane L. Gordon, the Law Department's Appeals Division Attorney who along with several other lawyers handled the case on behalf of the NYPD. "This will help to assure the confidentiality of those records."