Appeals Court Tells Police Union Its Contract Doesn’t Supersede State Public Records Laws

from the it's-the-people-that-own-you,-not-the-other-way-around dept

Cops love secrecy. When a citizen does something wrong, it’s a public record. When cops do the wrong thing, union contracts, internal policies, and multiple public records exemptions often allow law enforcement agencies to keep the public from learning about misconduct.

Things have been changing, though. California recently amended its public records law, making police misconduct records publicly available for the first time in the state’s history. New York recently repealed a law that allowed law enforcement to keep misconduct records secret.

The same thing happened in Connecticut. Shortly after the murder of George Floyd by Minneapolis police officer Derek Chauvin, the legislature passed a law that nullified state Freedom of Information Act exemptions that allowed law enforcement agencies to withhold certain misconduct records.

The Connecticut State Police Union (CSPU) didn’t like this unexpected level of transparency. It sued the state official tasked with upholding the law, claiming the collective bargaining agreement it had signed a year earlier contained these exemptions and that the state’s new law violated the Contracts Clause of the US Constitution by basically overriding that portion of the contract.

The district court denied the union’s attempt to enjoin the law — one that specifically forbade any future police union contractual language that would undermine the alterations to the state’s public records law. (The law also applied retroactively, nullifying the language in the union contract). It said the government’s interest in increasing police transparency and accountability was aligned with the public’s interests, in contrast to the bargaining agreement language, which only benefited police officers accused of misconduct.

The Second Circuit Appeals Court agrees with the lower court. It also points out in its decision [PDF] that it was the exemptions granted in the union contract that upset the status quo. The law passed after the George Floyd murder simply reset things back to the way they were. (h/t Courthouse News Service)

That the original text of Connecticut’s FOIA did not contain the exception for police disciplinary records created by the 2018 collective bargaining agreement indicates that the legislature, in creating a broad mandate for open government in the public interest, adopted the very public policy with respect to police records that the CSPU characterizes as self-interested or favoring narrow special interests. It was, to the contrary, the collective bargaining agreement that introduced a special contractual departure from the original policy to satisfy a powerful group of public employees. The restoration of the prior FOIA regime exemplifies the point that the legislature cannot permanently bargain away its responsibility to govern in the public interest.

The Appeals Court doesn’t care for any of the union’s arguments. The state was justified in its alteration of the contract.

The CSPU argues that there was no change in circumstance that could have justified impairing the collective bargaining agreement. But Floyd’s murder, and the nationwide protests it prompted, presented precisely the sort of changed circumstance to which the legislature might reasonably have wished to respond.

As for the union’s insistence that the elimination of this exemption would allow the public to obtain records detailing nothing more than accusations against officers, the Appeals Court says “So what?” This is all part of the transparency and accountability the legislation was written to achieve.

The CSPU counters that Floyd’s murder could not have justified the FOIA provisions of the Act because disclosing investigations that result in a disposition of “exonerated,” “unfounded,” or “not sustained” would simply disseminate “false allegations of misconduct” rather than truly address the absence of police accountability. We disagree. As the Commissioner points out, the fact that a complaint results in such a disposition does not necessarily mean that the allegations were false. It could also mean that there was insufficient or disputed evidence to substantiate the complaint, or that the complained-of action occurred but was proper under the circumstances. At a more general level, the public may often have a strong interest in learning about a complaint even when it does not justify disciplinary action.

The Appeals Court says the public’s interests were being served by the state legislature — a legislature that was understandably compelled to increase accountability and repair the damaged trust created by years of lax oversight and law enforcement’s tendency to control the narrative by restricting access to misconduct records. All the law did was undo the damage done by the union contract. And that’s simply not enough to create a constitutional violation.

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Comments on “Appeals Court Tells Police Union Its Contract Doesn’t Supersede State Public Records Laws”

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Tanner Andrews (profile) says:

Creatintg Their Own Problem

Here is the problem …

original text of Connecticut’s FOIA did not contain the exception for police disciplinary records created by the 2018 collective bargaining agreement

That is, the police union sought to contract around the law, to form an agreement contrary to the law and public policy. You cannot simply agree, by contract,that the law does not apply to you.

Otherwise, today’s police union contract might contravene Public Records. Tomorrow’s might provide an off-duty exemption from domestic violence. Next year’s, an exemption from auto negligence. Think of it as a benefit if cops do not have to pay for insurance. And perhaps broaden it a little, they could be exempt from DUI/DUBAL because it is a stressful job and they need to relax.

And why should it just be cops? They also let the city manager be exempt from these pesky, inconvenient laws. And as a private sector benefit, perhaps bank teller contracts could exempt them from laws governing stealing.

Except that is not how it works. To impair a contract, the law must interfere with a lawful contract. A contract permitting concealment of public information, or stealing, or drunken operation of motor vehicles, should be considered void ab initio and not something to be deemed impaired if we clarify that contracts to do illegal things are illegal.

Note that I am not licensed in Connecticut, indeed, cannot even reliably spell it. So this is general opinion and not legal advice valid in any particular state, including yours.

(sorry, preview still broken on new site, older-model firefox w/o javascript)

Tanner Andrews (profile) says:

Re: Re:

seems like insightful/funny/flag are also broke

Yes, broken for me also.

I suspect that there was someone working on the new site who has not yet caught up to 1990s HTML technology where you can embed a clever link for something like that, with params passed in using a construct.

They are trying to work around this lack of technology with javascript, which is generally considered evil. The nice thing with javascript is you can pretend to be a ``real programmer” with elite technical skills. Even if, in fact, your elitly skilled programming does not work reliably, or at all with accessible browsers.

Lostinlodos (profile) says:

Re: Re: Re: Working on it

Looks to be two issues
The first is all sorts of Java/JSissues.
And as far as I’m concerned Java/JS = 🤢 🤮

Yep, I’m one of those that think the entire Java tree is malware

The other issue appears to be in rendering HTML5.x
That’s a rendering issue.
I’ve contact Mozilla and Google with errors and fixes.

Safari users are a bit sol for the time being until somebody can fox the issues with 14c/15x/16x

That includes the fresh refresh on link bug.
Firefox and chrome/edge users Simply need to update to A current release
Issue has been fixed

Anonymous Coward says:

The CSPU argues that there was no change in circumstance that could have justified impairing the collective bargaining agreement.

Did.. did they just argue that murdering people is a regular occurrence for them? It seems like their argument is “we murder people all the time, so STFU about it”.

Not exactly a compelling argument.

Naughty Autie says:

Re: Re: Re:

Just seems overly complicated to do a whole new law for one minor contract line somewhere in the state.

Maybe, but less of the court’s time is wasted in attacking contracts every time the provision or clause pops up with altered phrasing if they just make a law against putting it in there from the start.

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