20

- 2789(L)
Uniformed Fire Officers Association et al. v. de Blasio et al.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 6 t h day of F e b r u a r y , two thousand twenty

- one

. 3

4 PRESENT: AMALYA L. KEARSE, 5
PIERRE N. LEVAL

, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges

. 8

------------------------------------------------------------------ 9
UNIFORMED FIRE OFFICERS ASSOCIATION; 10
UNIFORMED FIREFIGHTERS ASSOCIATION OF 11 GREATER NEW YORK; POLICE BENEVOLENT 12 ASSOCIATION OF THE CITY OF NEW YORK, 13 INC., CORRECTION OFFICERS’ BENEVOLENT 14
ASS OCIATION OF THE CITY OF NEW YORK, 15 INC., SERGEANTS BENEVOLENT ASSOCIATION, 16 LIEUTENANTS BENEVOLENT ASSOCIATION, 17 CAPTAINS ENDOWMENT ASSOCIATION, 18
DETECTIVES’ ENDOWMENT ASSOCIATION

, 19

20 Plaintiffs

- Appellants

- Cross

- Appellees

, 21

222 v. No. 20

- 2789

- cv(L) 1
No. 20

- 3177

- cv(XAP) 2 BILL DE BLASIO, IN HIS OFFICIAL CAPACITY AS 3 MAYOR OF THE CITY OF NEW YORK, CITY OF 4 NEW YORK, NEW YORK CITY FIRE 5 DEPARTMENT, DANIEL A. NIGRO, IN HIS 6 OFFICIAL CAPACITY AS THE COMMISSIONER 7 OF THE FIRE DEPARTMENT OF THE CITY OF 8 NEW YORK, NEW YO RK CITY DEPARTMENT OF 9 CORRECTIONS, CYNTHIA BRANN, IN HER 10
OFFICIAL CAPACITY AS THE COMMISSIONER 11
OF THE NEW YORK CITY DEPARTMENT OF 12 CORRECTIONS, DERMOT F. SHEA, IN HIS 13
OFFICIAL CAPACITY AS THE COMMISSIONER 14 OF THE NEW YORK CITY POLICE DEPARTMENT, 15
NEW YORK CIT Y POLICE DEPARTMENT, 16 FREDERICK DAVIE, IN HIS OFFICIAL CAPACITY 17
AS THE CHAIR OF THE CIVILIAN COMPLAINT 18 REVIEW BOARD, CIVILIAN COMPLAINT 19
REVIEW BOARD

, 20 Defendant s

- Appellee s , 21

22
COMMUNITIES UNITED FOR POLICE REFORM

, 23

24 Intervenor

- Defendant

- Appellee

- Cross

- Appellant

. 25

------------------------------------------------------------------ 26

27
FOR PLAINTIFFS

- APPELLANTS

- A NTHONY P. C OLES
, DLA Piper 28
CROSS

- APPELLEES : LLP, New York, NY ; Courtney 29 Gilligan Saleski

, DLA Piper 30 LLP, Philadelphia, PA 31

32
FOR DEFENDANT S

- APPELLEE S : E LINA D RUKER
, Scott Shorr

, 33 Richard Dearing, for James E

. 343 Johnson, Corporation Counsel 1 of the City of New York , New 2 York, NY 3

FOR INTERVENOR

- DEFENDA NT

- T IFFANY R. W RIGHT , Howard 4
APPELLEE

- CROSS

- APPELLANT: University School of Law, 5 Washington, DC ( Alex V. 6 Chachkes

, Christopher J. 7
Cariello

, Rene A. Kathawala, 8 Orrick, Herrington & Sutcliffe 9 LLP, New York, NY, on the 10 brief ); Baher Azmy, Darius 11 Charney, Center for 12 Constitutional Rights, New 13 York, NY 14

FOR AMICUS CURIAE NEW YORK Aaron Marks, Joseph M. 15
CITY COUNCIL PROGRESSIVE Sanderson, Kirkland & Ellis 16
CAUCUS: LLP, New York, NY 17

18
FOR AMICI CURIAE NAACP LEGAL Chris A. Hollinger, O’Melveny 19
DEFENSE AND EDUCATIONAL & Myers LLP, San Francisco, 20 FUND, INC.

, LAWYERS’ COMMITTEE CA; Paul Wooten, O’Melveny 21 FOR CIVIL RIGHTS UNDER LAW, & Myers LLP, New York, NY; 22 LATINOJUSTICE PRLDEF, LAW FOR Joe Greenbaum, Arthur Ago, 23
BLACK LIVES: John Fowler, Lawyers’ 24 Committee for Civil Rights 25 Under Law, Washington, DC; 26 Jin Hee Lee, Ashok Chandran, 27 NAACP Legal Defense and 28 Educational Fund, Inc., New 29 York, NY; Juan Cartagena, 30 LatinoJustice PRLDEF, New 31 York, NY 324 1
FOR AMICUS CURIAE NEW YORK Molly K. B iklen, Christopher 2
CIVIL LIBERTIES UNION: Dunn, New York Civil 3 Liberties Union Foundation, 4 New York, NY; Jamie L. Wine, 5 Lawrence E. Buterman, Samir 6 Deger

- Sen, Latham & Watkins 7 LLP, New York, NY 8

9
FOR AMIC I CURIAE NEW YORK Andrew C. Quinn, The Quinn 10
STATE AS SOCIATION OF POLICE Law Firm, P.L.L.C., White 11 BENEVOLENT ASSOCIATIONS, Plains, NY 12
AFFILIATED POLICE ASSOCIATIONS 13 OF WESTCHESTER, ROCKLAND 14
COUNTY POLICE BENEVOLENT 15
ASSOCIATIONS: 16

17
FOR AMICI CURIAE THE Katie Townsend, Bruce D. 18
REPORTERS COMMITTEE FOR Brown, T he Reporters 19 FREEDOM OF THE PRESS, 31 Committee for Freedom of the 20
NEWS MEDIA ORGANIZATIONS: Press, Washington, DC 21

22 FOR AMICUS CURIAE JUSTICE David L. Kornblau, Russell M. 23
COMMITTEE INC.: Squire, Covington & Burling 24 LLP, New York, NY 25

26
FOR AMICUS CURIAE LAW Joel D. Bertocchi, Brian S. 27
ENFORCEMENT ACTION Fraser, Akerman LLP, New 28
PARTNERSHIP: York, NY 29

30
FOR AMICI CURIAE GIRLS FOR Joel M. Cohen, Shireen Barday, 31 GENDER EQUITY, TRANSGENDER Katherine M. Marquart, Maya 32
LAW CENTER: H. Nuland, Sarah L. Segal, 33 Gibson, Dunn & Crutcher, 345 New York, NY; Julie Hamilton, 1 Gibson, Dunn & Crutcher, 2 Denver, CO 3

4
FOR AMICUS CURIAE NEW YORK Pamela S.C. Reynolds, Littler 5 STATE BLACK, PUERTO RICAN

, Mendelson, P.C., Fairport, NY 6 HISPANIC & ASIAN LEGISLATIVE 7 CAUCUS: 8

9
FOR AMICUS C URIAE NEW YORK Jeffrey P. Mans, Law Office of 10
STATE LAW ENFORCEMENT Jeffrey P. Mans, Albany, NY 11 OFFICERS UNION, DISTRICT 12 COUNCIL 82, AFSCME, AFL

- CIO: 13

14
FOR AMICUS CURIAE THE POLICE James B . Tuttle, The Tuttle 15 CONFERENCE OF NEW YORK, INC.: Law Firm, Clifton Park, NY 16

17
FOR AMICUS CURIAE SYRACUSE Roger W. Bradley, Elizabeth A. 18
POLICE BENEVOLENT Genung, Melvin & Melvin, 19 ASSOCIATION, INC.: PLLC, Syracuse, NY 20

21
FOR AMICUS CURIAE NEW YORK Richard S. Corenthal, Paul K. 22
STATE PROFESSIONAL FIRE Brown, Archer, Byington, 23
FIGHTERS ASSOCIATION: Glennon & Levine LLP, 24 Melville, NY; Nathaniel G. 25 Lambright, Blitman & King 26 LLP, Syracuse, NY 27

28

29
FOR AMICI CURIAE FORMER Joshua Colangelo

- Bryan, 30 PROSECUTORS ALVIN BRAGG, Anthony P. Badaracco, 31 TARYN MERKL, CHIRAAG BAINS, Dorsey & Whitney LLP, 32 NATHANIEL AKERMAN, G. New York, NY 33 MICHAEL BELLINGER, RICHARD 346 F. ALBERT, ROLAND G. RIOPELLE, 1 ISABELLE A. KIRSHNER, 2 ALEXANDER RIAS, LAUREN

3 BROOKE EISEN, XAVIER 4
DONALDSON: 5

6 FOR AMICI CURIAE COMMON Sean Murphy, Kamel Aitelaj, 7 CAUSE /NEW YORK

, Milbank LLP, New York, NY 8 REINVENT ALBANY, 9 CITIZENS UNION, BETANYC: 10

11
FOR AMICI CURIAE SUFFOLK Alex J. Kaminski, Davis & 12 COUNTY POLICE CONFERENCE, Ferber, LLP, Islandia, NY 13 INC., SUFFOLK COUNTY POLICE 14 BENEVOLENT ASSOCIATION, 15 INC., METROPOLITAN 16
TRANSPORTATI ON AUTHORITY 17
POLICE BENEVOLENT 18 ASSOCIATION, INC: 19

20

Appea l from a n order of the United States District Court for the Southern 21

District of New York ( Katherine P. Failla

, Judge ). 22

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 23

AND DECREED that the order of the D istrict C ourt is AFFIRMED. 24

This appeal arises from the repeal of § 50

- a of the New York Civil Rights 25

Law, which for decades shielded law enforcement disciplinary records from 26

public disclosure

. Shortly after the repeal, New York City (the “City”) 277 announced its intention to proactively publish certain types of disciplinary 1

records and provide other records upon request consistent with its obligations 2

under New York’s Freedom of Information Law (FOIL), N.Y. Pub. Off. Law 3

§ § 84

– 90

. Several unions (the “Unions”) representing uniformed members of the 4

New York City Police Department (“NYPD ” ), the New York City Fire 5

Department (“FDNY”), and the New York City Department of Correction 6

(“DOC”) filed this action against the City, the NYPD, t he FDNY, the DOC, the 7

Civilian Complaint Review Board (“CCRB”), and their principal officers . The 8

Unions moved to preliminarily enjoin any disclosure of allegations of 9

misconduct against their members that are unsubstantiated, unfounded, or non

10

final, or that result ed in an exoneration or a finding of not guilty. T he District 11

Court (Failla, J. ) denied the motion in substantial part , but granted a limited 12

preliminary injunction in favor of the Unions, which we explain further below

. 13

The Unions appealed from the denial of their motion , and Communities United 14

for Police Reform (“CPR”)

, which intervened in this case, cross

- appealed from 15

the District’s Court’s limited preliminary injunction. Another panel of this Court 16

granted a stay of the District Court’s order pending disposition of this appeal. 178 We assume the parties’ familiarity with the underlying facts and prior 1

record of proceedings, to which we refer only as necessary to explain our 2

decision to affirm. 3

1. The Unions’ Appeal: Preliminary Injunction in Aid of Arbitration 4

We review the District Court’s order for abuse of discretion. See SG 5

Cowen Sec. Corp. v. Messih , 224 F.3d 79, 81 (2d Cir. 2000). 6

Each of the Unions’ collective bargaining agreements (“C BAs”) contains an 7

arbitration provision, and the Unions ask the Court to enjoin the NYPD’s and the 8

CCRB’s planned disclosures pending adjudication of their claims in arbitration. 9

Under New York law, which governs the CBAs

, a court may issue a preliminary 10

injunction in aid of arbitration if the movant demonstrates that (1) absent a 11

preliminary injunction, an award in arbitration “may be rendered ineffectual,” 12

(2) the movant is likely to succeed on the merits of the claim to b e arbitrated, 13

(3) there is a “danger of irreparable harm” to the movant should preliminary 14

relief be denied, and (4) the balance of the equities “tips in the petitioner’s favor.” 15

Id. at 81

– 84. 169 Here, the Unions assert that the planned disclosures will vio late two 1

provisions common to all of the ir CBAs. The District Court denied the Unions’ 2

motion for a preliminary injunction only as it related to the first provision , which 3

stat es that upon an officer’s “written request to the Chief of Personnel,” NYPD 4

“will . . . remove from the Personnel Folder investigative reports which, upon 5

completion of the investigation are classified ‘exonerated’ and/or ‘unfounded.’” 6

App’x 1528. We agree with the District Court that th is provision does not 7

conflict with the planned public disclosures , substantially for the reasons set 8

forth in the District Court’s decision . Special App’x 19

– 21

. Removal of such 9

records from a personnel file , as called fo r by the CBAs, does not require 10

eliminating them from all of the City’s records. There is no contention that the 11

City has failed to adhere to its obligation to remove the records from personnel 12

files or has improperly considered them in connection with pe rsonnel decisions 13

(such as promotion or termination)

. Moreover, to the extent that this claim 14

implicates records that must be disclosed under FOIL, the NYPD cannot bargain 15

away its disclosure obligations. Matter of M. Farbman & Sons v. N.Y.C. Health 16

& Hosps. Corp. , 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 71 (1984). The District Court 1710 therefore acted within its discretion when it concluded that the Unions failed to 1

demonstrate a likelihood of success on the meri ts in the arbitration of this claim

. 2

See SG Cowen , 224 F.3d at 84. 3

2. The Unions’ Appeal: Preliminary Injunction Pending Resolution of 4 Remaining Claims 5

“[D]istrict courts may grant a preliminary injunction where a plaintiff 6

demonstrates irreparable harm and meets either of two standards: (a) a 7

likelihood of success on the merits, or (b) sufficiently serious questions going to 8

the merits to make them a fair ground for litigation, and a balance of hardships 9

tipping decidedly in the movant’s favor.” Trump v. Deutsche Bank AG , 943 F.3d 10

627, 635 (2d Cir. 2019) (quotation marks omitted)

, vacated and remanded on 11

other grounds

, 140 S. Ct. 2019 (2020). W e do not decide whether the Unions 12

must satisfy one standard or the o ther here because w e conclude that the District 13

Court did not abuse its discretion under either standard. 14

A. Irreparable Harm 15

The Unions assert that law enforcement officers will have fewer 16

employment opportunities in the future if record s of the allegations against them 17

that prove to be unfounded or unsubstantiated are disclosed , even though each 1811 record will reveal the outcome of the investigation. But the District Court noted 1

that future employers were unlikely to be misled by conduct records that 2

contain ed “dispositional designations” specifying that allegations of misconduct 3

were unsubstantiated, unfounded, or that the accused officer was exonerated. 4

See Special App’x 14

– 15. As t he District Court also noted, despite evidence that 5

numerous o ther States make similar records available to the public, the Unions 6

have pointed to no evidence from any jurisdiction that the availability of such 7

records resulted in harm to employment opportunities. Id. For these reasons, 8

the District Court did not a buse its discretion when it determined that the 9

asserted harm was speculative and that the Unions had failed to demonstrate on 10

this record that the officers will suffer irreparable harm to their employment 11

opportunities that cannot be remedied by an award of lost wages. I n general, 12

“ irreparable harm is not shown in employee discharge cases simply by a 13

showing of financial distress or difficulties in obtaining other employment 14

‘ however severely they may affect a particular individual

. ’ ” Stewart v. INS , 762 15

F.2d 193, 199 (2d Cir. 1985) (quot ing Sampson v

. Murray , 415 U.S. 61, 92 n.68 16

(1974) )

. 1712 We also address the Union’s more general assertion of heightened danger 1

and safety risk s to police officers

. W e fully and unequivocally respect the 2

dangers and risks police officers face every day

. But we cannot say that the 3

District Court abused its discretion when it determin ed that the Unions have not 4

sufficiently demonstrated that those dangers and risks are likely to increase 5

because of the City’s planned disclosures

. In arriving at that conclusion, we note 6

again that many other S tates mak e similar misconduct records at least partially 7

available to the public without any evidence of a resulting increase of danger to 8

police officers

. See App’x 1035

– 36, 1163, 2140

– 42. 9

B. The Merits 10

The Unions also have not raised sufficiently serious questions on the 11

merits of their claims. First, the Unions assert a “stigma

- plus” claim under the 12

Federal and New York State Constitutions. Under both federal and s tate law, 13

stigma

- plus claims require the plaintiff to adequately demonstrate an “injury to 14

one’s reputation (the stigma) coupled with the deprivation of some ‘tangible 15

interest’ or property right (the plus), without adequate process.” DiBlasio v. 16

Novello

, 344 F.3d 292, 302 (2d Cir. 2003); see Matter of Lee TT. v. Dowling

, 1713 87 N.Y.2d 699, 708 , 642 N.Y.S.2d 181, 187 (1996). The Unions fail to demonstrate 1

that any officer will be deprived of a tangible interest or property right. We have 2

held that d iminished future employment opportunities resulting from a 3

damaged reputation, as opposed to some independent legal detriment , are not 4

sufficient. See Sadallah v. City of Utica , 383 F.3d 34, 38

– 39 (2d Cir. 2004). 1 5

The Unions’ equal protection claims fare no better. Because law 6

enforcement officers are not a protected class for equal protection purposes , they 7

must show that there is no rational and nondiscriminatory basis to treat their 8

records differently from the records of other public employees. See Sensational 9

Smiles, LLC v. Mullen , 793 F.3d 281, 284 (2d Cir. 2015). Even the Unions 10

recognize that “the unique responsibilities of law enforcement officers set them 11

apart.” Unions Br. 56. Because th e public has a stronger legitimate interest in the 12

disciplinary records of law enforcement officers than in those of other public 13

employees , the District Court correctly determined that there was a rational, 14

nondiscriminatory basis for treating the two sets of records differently

. 15

1 We assume, without deciding, that the protections provided by the New York State Constitution are equivalent to their federal counterparts, as no party has suggested
otherwise.14 Next, the Unions contend that when officer s entered plea agreements in 1

disciplinary proceedings, those agreements implicitly incorporated § 50

- a of the 2

Civil Rights Law. Again, we disagree. T he New York Court of Appeals has 3

cautio ned that a contract “does not transform all statutory requirements that may 4

otherwise be imposed under [the governing] law into contractual obligations,” 5

and it has “decline[d] to interpret [a contract] as impliedly stating something 6

which [the signatories ] have neglected to specifically include.” Skanska USA 7

Bldg. Inc. v. Atl. Yards B2 Owner, LLC , 31 N.Y.3d 1002, 1007 , 74 N.Y.S.3d 805, 8

807

– 08 (2018) (quotation marks omitted) . “[R]ead [ ing ] into . . . contracts terms 9

that do not exist based on then

- existin g statutory language

, . . . would protect 10

against all changes in legislation, . . . [and] severely limit the ability of state 11

legislatures to amend their regulatory legislation.” Am. Econ. Ins. Co. v. State of 12

N.Y. , 30 N.Y.3d 1 36, 154 , 65 N.Y.S.3d 94, 107 (2017) (quotation marks omitted). 13

The Unions do not point to any legislative history in support of their argument, 14

or to any evidence that the parties to the plea agreement s intended to incorporate 15

§ 50

- a as the Unions suggest. Nor do the Unions argu e that § 50

- a “affect[s] the 16

validity, construction, and enforcement” of the plea agreements. Id. 1715 The Unions also argue that the City’s decision to publish certain 1

disciplinary records without individualized review is arbitrary and capricious 2

under Arti cle 78 of the New York Civil Practice Law and Rules. See N.Y. 3

C.P.L.R. §§ 7801, 7803 (3)

. Substantially f or the reasons provided by the District 4

Court in its order, we reject the ir argument. As the District Court observed, the 5

City appears to still recognize those specific FOIL exemptions that are designed 6

to protect against unwarranted invasion s of personal privacy or endanger ing a 7

person’s safety. See N.Y. Pub. Off. Law § 87 (2) (b), (f). 8

Alternatively, the Unions assert that it was arbitrary and capricious for the 9

City to change without explanation its established practice of asserting that 10

records relating to unsubstantiated allegations should be withheld under FOIL’s 11

exemption for docum ents whose disclosure would constitute an unwarranted 12

invasion of privacy. See Unions Br. 48

– 51; Matter of Charles A. Field Delivery 13

Serv., Inc. , 66 N.Y.2d 516, 520 , 498 N.Y.S.2d 111, 115 (1985). But that practice, if it 14

ever existed, appears to have ended no later than 2017. S ee App’x 1614, 1643. 15

And any change in the CCRB’s position was adequately explained by the 16

Mayor ’s public remarks following the repeal of § 50

- a. See Transcript: Mayor de 1716 Blasio Ho lds Media Availability , NYC.gov (June 17, 2020), available at 1

https://www1.nyc.gov/office

- of

- the

- mayor/news/446

- 20/transcript

- mayor

- de

2

blasio

- holds

- media

- availability

. 3

C. Balance of the Equities 4

As for the balance of the equities

, t he Unions argue that the equities favor a 5

preliminary injunction because disclosure of information is permanent, while 6

those who seek information will suffer only delay if an injunction is entered

. We 7

do not doubt the sincerity of the Unions’ concerns. As several amici point out

, 8

however, delay for victims unable to obtain information about the status of their 9

complaints is itself costly both for them and for various other stakeholders in the 10

criminal justice system, s ee , e.g. , Brief for Former Prosecutors as Amici Curiae 11

Supporting Intervenor

- Defendant

- Appellee

- Cross

- Appellant 6

– 10 , as well as the 12

press, see Brief for The Reporters Committee for Freedom of the Press & 31 News 13

Media Organizations as Amici Curiae Supporting of Intervenor

- Defendant

14

Appellee

- Cross

- Appe llant 15

– 21

. B ecause the Unions’ stated interests are 15

c ounterbalanced by other important policies, the District Court did not abuse its 1617 discretion in determining that the balance of the equities does not tip in their 1

favor. 2

3. CPR’s Cross

- Appeal 3

The District Court grant ed the Unions’ motion for a preliminary injunction 4

in aid of arbitration as it related to the second provision of the CBAs relevant to 5

this appeal

, Section 8. 2 Under Section 8, a police officer who has “been charged 6

with a ‘Schedule A ’ violation as listed in [ the ] Patrol Guide,” proceed s to a 7

disciplinary trial on such charge, and is not determined guilty may “petition the 8

Police Commissioner for a review for the purpose of expunging the record of the 9

case.” App’x 1528. On its cross

- appeal, CPR argues that the District Court’s 10

decision to enjoin the disclosure of these records was an abuse of discretion 11

because the NYPD cannot bargain away its FOIL obligations. See CPR Br. 22

– 29, 12

70

– 73. 3 But on this record, we conclude that enforcing Section 8 would not affect 13

2 Th e relevant provision appears in Section 8 of most, but not all, CBAs. Like the District Court, we refer only to its usual location for ease and clarity.

3 We are not persuaded by the Unions’ contention that CPR lacks standing to appeal because it is not a signator y to the CBAs. CPR is injured by the injunction because it prevents the NYPD from fulfilling CPR’s FOIL request for documents covered by this provision. CPR argues that the CBAs impermissibly deprive it of rights guaranteed by
FOIL.18 those obligations. As the City notes, “Schedule A” lists “technical violations,” 1

City Br. 16, such as “[i]mproper uniform or equipment” and “[r]eporting late for 2

duty,” N.Y. Polic e Dep’t Patrol Guide 206

- 03 Schedule A (effective April 20, 3

2017). And under New York law, “a law enforcement agency may redact record s 4

pertaining to technical infractions

. . . prior to disclosing such records” pursuant 5

to FOIL. N.Y. Pub. Off. Law § 89( 2

- c). Accordingly, we conclude that the District 6

Court did not abuse its discretion in preliminarily enjoining disclosure of these 7

records. If CPR can show that “Schedule A” violations include anything other 8

than “[t]echnical infraction[s]” as defined by New York law, see N.Y. Pub. Off. 9

Law § 86(9), it may move the District Court for appropriate relief, see Weight 10

Watchers Int’l, Inc. v. Luigino’s, Inc. , 423 F.3d 137, 141 (2d Cir. 2005). 11

We have considered the Unions’ remaining arguments and conclude that 12

they are without merit. For the foregoing reasons, the District Court’s order is 13

AFFIRMED. 14

FOR THE COURT: 15
Catherine O ’ Hagan Wolfe, Clerk of Court 16