Katherine Polk Failla U.S. District Judge Katherine Polk Failla. Photo: Diego M. Radzinschi

A Manhattan federal judge ruled Tuesday that the New York Civil Liberties Union can publish a database of police disciplinary records it obtained through a freedom-of-information request, after ProPublica made a trove of previously unreleased files public over the weekend.

U.S. District Judge Katherine Polk Failla of the Southern District of New York modified a temporary restraining order that barred the NYCLU from further disclosing any documents it received through a FOIL request to New York City.

The order, entered July 22, had found the NYCLU to be "acting in concert" with the city in its alleged efforts to release unsubstantiated disciplinary records of New York City police officers.

A lawyer for a union that represents city police, firefighters and corrections officers remarked that the city's response to the NYCLU's FOIL request "set land-speed records," and accused the city of trying to rush the documents out in anticipation of a court order preventing their release.

The NYCLU, however, claimed that it never had not received any records since the lawsuit was filed. In a letter to the court, its attorney, Christopher Dunn, said that the information was already in the public domain, after ProPublica made a detailed database available online Sunday.

Dunn wrote that the order, if allowed to remain in place, raised prior-restraint concerns under the First Amendment, regardless of the speed with which the city responded to its request.

While Failla noted that the NYCLU's prior-restraint arguments were "strong," her ruling Tuesday centered on the fact that the rights organization was not a "party" to the litigation, and thus outside the reach of her powers. Dunn and the ACLU, she said, were not acting in defiance of any existing court order when they obtained the records, and could not have anticipated an injunction.

"I don't have the ability to look back in time," Failla said.

"My power is limited, and I don't have the ability to stop him when the deeds were already done," she said.

Failla's ruling gave the union 24 hours to decide whether to appeal to the U.S. Court of Appeals for the Second Circuit before the restraining order was lifted.

Law enforcement unions have sued to stop the release of disciplinary records in the wake of New York's repeal earlier this year of a civil rights law known as 50-a, which shielded officers' history of misconduct from public disclosure. The suit claims that mass release of the records would include unsubstantiated and false accusations that would "absolutely destroy the reputation and privacy" of current and former officers.

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