officers of the city of new york and on this motion we are asking for a short extension of the stay entered by judge chin to allow a careful consideration of the issues presented on our appeal which arise from the city's expressed intent to publish and promote on the internet thousands of unsubstantiated unproven and non final allegations against our officers including many retired officers the appeal centers on the fact that our clients have rights that were not simply washed out of existence with the repeal of fifty a day and they exist independently and separately from fifty a well without a stay these only really one question to ask you the whole time so i'll ask it now because it's relevant to what you just said and the question is hasn't that irreparable injury already happened over the weekend while i was preparing for reading your papers and on went to the new york civil liberties union website which is mentioned in the papers and found exactly the information that you say with whatever justice and i'm not arguing about it that this would be harmful to your clients and it's there and i put in the name of an officer i know and found a whole bunch of unsubstantiated complaints against that individual  and it's there the cat is not only out of the bag it's running the streets so what exactly is the irreparable injury that's going to happen in addition between now and whenever a presumably expedited if you'd like that appeal is going to be heard if there actually is a terrific question and yes your honor we would like an expedited appeal but the truth is the civil liberties union disclosure from the c c r be it is simply a small part of all of the records that the city is intending to release the those records in our view in real time or are creating damage you is on the issue of safety which is which is where i'd like to start is your honour's know from our papers that at the time the repeal understand why you think that this publication is dangerous i get that but the publication has happened that's my question if i've you know i know where that person lives because i know that person i plug the officer's name into the and my seal you website and i found exactly the information that you are complaining will cause harm if it is released and my question again is it's already been released now you started by saying this is only a small portion of the records so are you saying that the city is going to release more data that is not part of the c c r bay is that what y it is a significant problem is the way the city has articulated what they're going to release what the c c r be released who was just a small part the department is planning or intending to release unsubstantiated charges and specifications about officers it's intending to c c r b is intending to release release complaint reports none of these types of documents which have much more information than the c c r be released have been have been have been released so far and they were stayed by it by justice chin's action so what happened it could you could just please  i just need to know what we're talking about are these additional records from the c c r b are these internal affairs records are these police department records just what is it that you're talking about that is not out there that is going to be out there that's all i want to know ok so sorry with the police department it is the police department records that have not been produced that are at issue over here in clued and there's an affidavit from from the police witness over here include all d pending charges and specifications issued by the police department so departmental other types of documents in association apparently with the charges and specifications from this t c r b's point of view the documents that were not included in the in the released tonight clue included complaint reports and complaint reports are basically raud data from usually individuals who are arrested who file a complaint and that was not disclosed to to the nyclu either so so essentially what you have is just a small piece of the c c c c r b documents that are going to be released plus you have no documents so far released from the bag or whatever for those eighty one thousand for those eighty one thousand officers on that limited information i can't dispute that i the short answer is there are many more a really terrific question and the answer is absolutely no and that's why we have this lawsuit i suppose the legislature could have passed a law that directed municipalities to release police disciplinary records but they didn't do that all they did is remove one barrier obstacle whatever term you want to use that was protecting discipline or records and collective bargaining rights and those are very significant rights think that it is the collective bargain that collective bargaining rights seem to me rather the limit and i'm and i'd like to know where conditions the public's access to documents through various exemptions including privacy including but the bench but the the civil liberties union obtained what they have on for it the question i have is whether is whether the the new york civil liberties union does not have what you claimed would now be disclosed the girl was because under under the under the applicable question properly there are two answers one no fifty a was not a direction to produce documents and that is very very significant and two as as i was dealing with  production to to of the civil liberties union is a limited production let me let me go back to mr cole's to this is a for oil issue i'm not as familiar with the new york state statute as i am with the federal statute under the federal statute there are various exceptions i've not seen a case that doesn't mean there aren't ones where a person requested documents under the federal law and the government produced th or said it was going to for duce them and then some other individual intervened and it was granted standing to say the government shouldn't or doesn't have to or is somehow that the exception to for y gives me a right that prevents the government from waiving the exception or from determining that the exception doesn't apply now is their authority in new york state law that some of these exceptions to foil grant affirmative substantive rights to individuals who may be mentioned in records to contest the government's decision that the exception doesn't apply or the in the statute that says not only that the government need not say i'm minus a holy spirit information for visions is the government has records if they want to publish them and generally speaking they can publish  if they don't want to publish them the freedom of information act says well a court can make you turn it over and there are certain exceptions where the court can't make you turn it over and the government sometimes complies with or without a court order but i've not seen a case that says that a rd party mentioned in the records can invoke the exception and prevent the government from disclosing something in response to a foyer request and when i ask you quite simply is do you have a case you have some authority that says that under new york state law there is such a right yes i believe there is a right under such state law to clu the release of documents that would violate due process collective bargaining well defined i think like you know we're trying to is one step at a time us started number one was privacy and when judge jacobs asked you what is the source of the privacy you said the freedom of information law now you're saying not really the freedom of information law it's really boils down to the due process collective bargaining whatever which create a right that is then somehow baked into foil so we're really talking about collective bargaining and due process so we're really talking about something in the foil statute well that there are really two parts that because the city is not producing documents only pursuant to foil the the city and the police department have said that they are independently going to roll sort of have a mass data dump of all the documents that we were talking about exactly so why does anything in the freedom of information law something is an exception to the dream information law precludes the government's preexisting authority to release documents no i don't i don't mean to say that and what i mean to say and i thought and if i'm not clear i should try and clarify that is that there are independent legal prohibitions to producing documents separate apart from the repeal of fifty a day that will affect my client's rights i  it prevents the release that's your theory but the language i think jacobs is about to as this question the language i think says that the record will be expunged from the officers personnel file not it doesn't say anything about what else the city can do or not do with these records now i understand you want to draw an inference but and maybe you want to make that argument explicitly but am i not right that it is not explicit let's just say in the section seven c well i don't you may not release these documents if the documents are removed or it does not use the word expunged expunge does in section eight i thought i thought you were referring to both ok we go back to section a i'm trying to do these things one thing at a time and understand the bases for your argument so seven  is not the strongest position for you the stronger position is section eight no i think so section eight we already want to is is section seven c we should also went on because section c deals with removal of investigatory reports from the personnel file from personal file in that is a right that the officers have and if these reports and information from these reports contained in charges and specifications is released to the public that right will be nullified that well i understand that either because i would think that if something is removed from the officers personnel file that has significant benefits for the officer regardless of where else these allegations exist they're still in the files of the c c r be they're still wherever they are the point is that the department can act on this that somebody who's looking at this office personnel file for purposes of whatever they get looked at for promotions or whatever will not have that information as something that they are allowed to act on that seems significant what but but that's different than union were my clients had the ability to remove documents from their files i believe that there is a compelling case to make an arbitrator that if you then make those documents public you put them in a city database that's going to release to the public you've nala fied the benefit of that bargain for ok i hear that i hear that now with the sec to section say eight section eight you said you already won on that but i don't think you did in the sense that is relevant to us because if you did you wouldn't be here you're arguing that section eight prevents requires this stay because it prevents the city from releasing these documents and stand that  what do you mean by you say you already want to know i mean he is the judge enforced section eight and says and says that that that the stay and the stakes tends to the she will stay she will send to arbitration what you're saying now is section eight is not really at issue before because that only applies to certain records and those already are excepted from the judge's order if that is correct or honor and i want to add to my answer to see it is already part of the arbitration process it is grievances have been filed by five of my clients the city has moved in the city collective bargaining office to dispute whether or not section c can be arbitrated that is all going to be decided in the in the labor law time frame which is in the next twenty dollars to thirty dollars days so both sides have committed that issue to arbitration are concerned with what the judge did it say usurped the arbitrator responsibility to make the type of inferences and decisions and interpretation of words that you and i were just in gauging and that that that is a quintessential function this should be subject to arbitration these provisions were barkin provisions the intent of the parties what they expected by them the meaning of the word removed from the personnel file what does it mean you lose the benefit of that w if it's not removed from other places or if this put on the public those are quintessential arbitration type if you issues and all were saying so you're saying that that section seven c would require the c c r be to burn these reports the city and the unions and so yes it would apply to the c r b records so when you say that when you say that section eight requires these records when removed from personnel files not to be removed everywhere you only had to do with their release to the public yes but but but seven but that seven c would be nullified the if other city agencies release the documents that are subject to seven seats  public and that in the end what we're not look we're looking for this matter to be referred to arbitration and the arbitrator should make the decision on these issues that is what we're looking for the internal records that are proposed to be released during the meeting these are not about unsubstantiated claims these are about claims when i take it they're not necessarily just ones investigation can end of one of four ways as relevant here it can be unfounded exonerated unsubstantiated or substantially the section seven seed provision which is absolutely right it only covers personnel actions but putting all that  assuming it means even more than that it only kick it's referring to exonerate lives and unfounded not substantiated or unsubstantiated claims it says those two records won't provide a basis for personnel act n you know that because the actor who is required to act under that provision is the chief of person that so of course the chief of personnel of n y p d cannot reach in to c c r b's records and remove records from an independent agency over which has  given an opportunity that and ned if it is substantiated only at that point is it referred to the commissioner to then proceed with formal disciplinary charges who can then have the discretion to decide one way or another  tex these records but that we should defer to the arbitrator and i'm wondering whether what your position is on that are you asking us to assess the likelihood that the arbitration will be successful or are you saying that we should just make an independent decision as to what the and made his mind up doing the same thing i don't know intend to sit at the collective bargaining agreement there is there is no overlap at all these are two separate then diagrams of this previously and even if you give them the benefit of every doubt and you bend over backwards and read this provision in a way that this language can't even really support you still don't get controversies that are presented for arbitration and why is it impossible that an arbitrator could decide that the things we're arguing about now are within the scope of of an arbitration provision  hindsight you're talking about a subsection of the of the contract but why can't an arbitrator who is really making rulings about the contract consider that these documents are within the scope of the contractual understand yeah i agree you may well say it would be well i'm not sure it would be right but arbitrators often can do this well but i think about it this way there was another provision of the c b i section eight which had a sliver of ambiguity and for that small category of documents that your schedule a documents the district court said let out of an abundance of caution not allow for the release of those records and allow those claims to go to arbitration and that is a small category of documents that are potentially actually covered by that because this provision speaks about unfounded or exonerated records be removed from in the same investigative record report right investigative report cannot be the proceedings from about just more simply exonerated and unfound those are the do those categories and what you're talking about now bear upon whether a station be granted yes so so if i don't understand it then what should i do so if you go to  brief i think it's in the rd ph i have a citation to each of the provisions that define those four terms under the statute you can see that this section seven only applies to exonerated and unfounded that's right because there are separate to find chirps so you have exonerated unfounded unsubstantiated and substantiated it is only the substantiated investigation that will them into the disciplinary process that will section seven protections even if they were outside of the personnel file which the not they still would never reach the records were actually proposing to release which are substantiated findings that then the commissioner decides to act on and so these final decisions of guilty and not guilty made by a hearing officer are so far down the process after they received credible amount of due process and will never ever follow an unsubstantiated upright and exonerated and what's the harm if we let the arbitrator make these decisions it seems like you're saying that we should be deciding which arguments are good enough to get to be arbitrary not you know if you're out of the question is about can can you or we are here you are going to make these arguments before the arbitrator but what they are asking for is not simply a reference to arbitration i take it you've already agreed to arbitrate is that right now you are now you haven't you are saying that the question is they are not asking that arbitration be compelled that's not what we're here about what we're here about is they are asking for an injunction in aid of arbitration and is that your contention that that's the issue before us yes but ok and then your next proposition is that there is a category of question that is and whether this falls into it or not i guess would be the next for a while there is a category of claim that is so far fetched that it would not support a showing that the  city should be enjoined from acting pending that a court should to undertake its powers to enjoy in an action from being taken pending the arbitration that it yes it does not have that i believe that between those so farfetched as we look at the language and all the other interpretive aids but there's a prior question as to whether there is such a category under a law as something that we can say this isn't in the ballpark for betra if there's no such category of anytime somebody says arbitration we should issue an injunction in eight of arbitration then we never reach those questions you're saying there is such a category and this falls into it because if we read the provisions we will come out where you come out that's it's as simple as there are three steps to the argument those are the three steps yes right absolutely so the three steps are that he read the se injury and i was i was planning to use my time to discuss irreparable injury and the public interest but i just want to pick up on a question and by judge legend judge jacobs with respect to the c b s a the st thing that i want to point out is that this court has an obligation under s g cowen to evaluate the likelihood of success on the merits of obligation and so that gives this port authority to of course engage with the merits in order to determine the likelihood of success and there is one reason under blacklet state law while the unions could never succeed on their claim on seven c of their collect that section seventy of their collective bargaining agreement and that is that the government agencies simply lack of already to negotiate away the public's right under the oil that was that clearly and his is like little rock that the one that's most on point is city of newark versus new york where it was decided that an arbitrator that order from an arbitrator purporting to limit had no operation under state law and so that that provision simply cannot meet what the unions say that it needs and so that is why they chose not succeed on likelihood on the merits of that claim and with that your hon i like to very briefly with the remainder of my time address irreparable harm and a little bit on public interest with respect to reparable harm the unions alleged three such harms reputation safety n c e a which we've just covered beginning with reputation i think it's important to note that this court has decided in stuart versus i and asked that the sort of reputational harm that the officers are claiming here simply cannot does not qualify as a reputable injury and specifically irreparable harm is that is that people would be able to look up and find unsubstantiated and jock and and groundless charges and target people and look up their addresses and on the internet threaten them in their homes threaten them and their families and their children at school wouldn't that be irreparable harm y example you're on and the unions do quite sue in generalized harm as possible to police officers i want to be clear no one here wants to see any officers come to harm but what the unions have failed to do is create a cause and link between the harm and the issue here which is released under foil what is in the record is twelve jurisdictions that had materially identical disclosure rules not a single documented case of a threat to an officer not a single documented case of harm because they have not shown irreparable injury as a supreme court to find it in winter and this right and they ask you you know we're only emotions panel despite the amount of time that we have devoted to this issue because it is a significant issue  we are not being asked to decide i think whether the unions are entitled to an injunction in a arbitration take it that such an injunction could damage the interests of your side of the table for a very long period of time because the arbitration to get started the arbitration takes as long as it takes unquestionably there would be litigation there after a bout with the arbitrator was right or wrong and life would go on through endless problems but we're only being asked whether the there should be a stay pending a nation by a merits tunnel of all of the issues that we've been talking about today and i understand where considering the likelihood of success on the merits and the burden on the other side is show a they are likely to succeed and be if there's irreparable cole said that the repeal of fifty one essay takes away a barrier but does not instruct to the city what to do with respect to foil requests or with respect to records of the city does what it does if you think they have an obligation under flail to rid release it you ask them they do we go through a process are you saying now that the repeal of fifty one dollars does do more th takes away of roadblocks to that not that the repeal of fifty eight in itself creates something that didn't exist before it all is that the affirmative obligation resides in soil that's correct your honor and i'd just i'm on the other hand council this information has been unavailable since time immemorial and in thirty eight states it's still unavailable i hear your arguments  the city talked about actually are not in any way conclusive nor does the police department in every case adopt those definitions with regard window into files it's impossible to do a charters and of the prohibition on being able to remove investigative files i also that think the fact that the chief of personnel removes the investigative file is completely meaningless in terms of supporting the  city meant because this is a contract between the city and the unions and once that and once that file i believe an arbitrator can explore whether or not the intent of the parties was that is removed seen police officers assassinated i mean there's a serious there's serious danger to being a police officer no one says anything to the country of that it but the recent incidents we've seen aren't people who had some charge against them they were just some  somebody angry attacking a random people that's all i did the point i wanted to make is at the hearing of the bill advocate got up and made a threat so once the names of the cops i'll be able to get their addresses get the addresses of their families and i'll find them all on google if you look at the amicus briefs there is something going on in the country right now people are showing up at cops homes they're shining lights in the cops there are examples in the press of people shooting into cops houses so there was an actual threat made at fifty hey this is all happening in real time and my my view is you need to be cautious about the risk to safety we're in a very turbulent time and i don't see a stay for a short period of time to protect throwing more gas on the fire which is what the city is suggesting and what mr wright was away our due process for rights on that i thought the statement that the city made that there is some due process hearing that takes place before charging a specification that is simply untrue there is nothing that protects  right for charge and specification it is issued if you don't extend the stay all these rights that we believe exist independent of fifty that are important to our officers and their families are are going to be extinguished and that's why i think just sin entered the stay on our papers and why i think you should do it here we are only looking for a stay pending appeal we're entitled to a meaningful careful review of these significant issues in a turbulent time in the city and involving matters to some degree with the repeal of fifty a day or matters a st impression and i would add which i jacob said these to the disciplinary records have been confidential by law for forty four years a nother couple of weeks is not going to make a big difference to the city it is going to make a huge difference to my sixty five thousand law enforcement officers when we leave it there this is about the longest