In 2020, the New York State Legislature repealed Civil Rights Law § 50-a, which, since 1976, had provided absolute protection for police officers’, corrections officers’, and certain peace officers’ personnel records used to evaluate job performance. The same legislative package added amendments to Freedom of Information Law (FOIL) requiring law enforcement agencies to redact certain categories of personal information and minor technical infractions. Following these changes, the New York State Union of Police Associations, Inc., the labor representative for the charging parties, made demands to bargain with each municipal employer.
On December 15, 2022, the Albany Police Supervisors’ Association, Inc., Horseheads Police Benevolent Association, Inc., Ithaca Police Benevolent Association, Inc., Town of Plattekill Police Benevolent Association, Inc., and Village of Saranac Lake Police Benevolent Association, Inc. formally demanded to bargain over the impact of the legislative changes. Their demand sought procedures for notifying affected unit members of receipt of a FOIL request, providing copies of records intended to be released, and affording an opportunity to comment prior to disclosure.
After discussions failed to yield a resolution, the unions filed improper practice charges on April 26, 2023. On April 30, 2023, the unions proposed a draft Memorandum of Agreement detailing specific pre-disclosure procedures, including notice within three business days of a FOIL request, access to records ten business days before planned release, an opportunity to submit objections, and final notice five business days before release. The City of Albany, Village of Horseheads, City of Ithaca, Town of Plattekill, and Village of Saranac Lake informed the unions that the matters set forth in the proposed MOA did not affect terms and conditions of employment and refused to bargain.
An ALJ found that the employers violated their bargaining obligation under § 209-a.1(d) of the Act. The employers filed ten exceptions, arguing that the ALJ improperly characterized the matter as one of decisional rather than impact bargaining, that FOIL preempted any duty to bargain, and that bargaining would interfere with their statutory obligations to respond expeditiously to FOIL requests.
NY PERB affirmed the ALJ’s decision in its entirety. The Board rejected the employers’ assertion that decisional bargaining did not apply, noting that while the employers had no obligation to bargain over the decision to comply with FOIL, the repeal of § 50-a and FOIL amendments required them to make “several separate implementation decisions” and implement policies to satisfy their disclosure obligations. The pre-disclosure procedures sought by the unions constituted mandatorily negotiable subjects of decisional bargaining.
The Board further found that FOIL does not preempt bargaining obligations, emphasizing that the “strong and sweeping” public policy favoring collective bargaining may be overcome only where legislative intent to remove an issue from bargaining is “plain and clear” or where a specific statutory directive leaves “no room for negotiation.” FOIL contains no such directive, and bargaining over pre-disclosure procedures would not cause employers to surrender nondelegable statutory responsibilities.
The Board also rejected claims that bargaining would impede timely FOIL responses, observing that the employers provided no evidence of inability to comply with statutory deadlines. Significantly, the record established that in March 2021, the City of Ithaca had already notified Ithaca Police Benevolent Association unit members that they would have an opportunity to review disciplinary records in response to FOIL requests and could notify the City of any errors or omissions regarding redactions, demonstrating feasibility. The Board noted that bargaining would likely occur only once, not for each individual FOIL request.
Finally, the Board agreed that the release of disciplinary records impacts employees’ terms and conditions of employment. Disclosure of disciplinary records could harm officers’ professional reputation among colleagues and the general public, affect their safety while at work, and damage future employment prospects. Although no privacy right prevents disclosure of bona fide records subject to valid FOIL requests, the duty to negotiate pre-disclosure procedures arises to minimize these impacts.
The Board ordered the municipalities to bargain with the respective police unions regarding pre-disclosure procedures and to post remedial notices.
In the Matter of Albany Police Supervisors’ Association, Inc. v. City of Albany, 58 PERB ¶ 3037 (2025).
This article appears in the May 2026 issue of our monthly newsletter, Public Safety Labor News.
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- Ohio FOP Allowed To Intervene In Federal Discipline Challenge
- New Jersey PERC Nixes Union’s Challenge To Revocation Of Take-Home Car Policy
- Sheriff’s “Instant Survey” On Schedule Change Not Direct Dealing
- ULP 101: Warden Can’t Bar Union VP From Labor Management Meetings
- Virginia Supreme Court Orders Release Of IA Records To Deputy Sheriff
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