Any plans the de Blasio administration had to destroy records of undocumented New Yorkers related to the IDNYC card program may have to wait. A court on Monday granted a restraining order that prevents the purging of records that probably shouldn’t have been collected in the first place.
After a lawsuit filed by two conservative New York state lawmakers, the city is prohibited from destroying records associated with IDNYC — which likely contain personal information on thousands of vulnerable undocumented immigrants. That means those records are a little closer to falling into the hands of president-elect Donald Trump, who has repeatedly pledged to deport “three million” undocumented immigrants.
The city announced a belated change to their record keeping policy Wednesday afternoon, saying they will stop keeping records of IDNYC applicants in the future. A statement attributed to mayoral spokesperson Rosemary Boeglin and council spokesperson Robin Levine read in part:
The IDNYC program will be transitioning to a policy that does not involve the retention of cardholders’ personal background documents. During this transition, New Yorkers are encouraged to continue to call 311 and make an appointment to begin the pre-application process that remains in place.
Despite that late change, the damage may already be done. When IDNYC was introduced in 2015, the New York Civil Liberties Union was one of the loudest voices urging the city to avoid exactly a scenario like the one that remains for those who have already applied for IDNYC. When the program was being considered, they urged the city to retain as little information as possible.
“When we were working on this bill early on we strongly advised [the city] that they could do verification of documentation in person,” says Johanna Miller, advocacy director at the New York Civil Liberties Union. The idea was to avoid the kind of stockpiling of things like pay stubs, birth records and other sensitive data. “The warehousing of those documents is dangerous, and it’s dangerous for a lot of reasons… there’s no justification for keeping it.”
New York’s municipal ID program has been a huge boon for some of the city’s most marginalized communities. The estimated 500,000 immigrants in the city without status were one of program’s prime constituencies, but they were also the focus of a good deal of concern. By definition, the new ID law requires undocumented people to take a huge risk: offer up their names and addresses for entry into a government database.
That’s the kind of identifying information that could put those who signed up for IDNYC at risk of deportation. The concern when the program was first discussed was that a conservative administration could use the records collected by the city as a road map for deportations (never mind that the Obama administration has deported more immigrants than any other in history).
Cities like San Francisco and Hartford, Connecticut, whose municipal ID programs predate New York’s, had grappled with exactly these questions, and found what Miller calls the better solution. They decided not to retain copies of many of the most sensitive records.
In recent weeks, Mayor de Blasio and City Council Speaker Melissa Mark-Viverito, who pushed hard for IDNYC, have begun to speak out about a once-hypothetical risk, saying they may destroy records the city currently maintains under a safety valve provision included in the law when the program was established.
But the restraining order issued on Monday will prevent the city from moving forward with that idea, at least for now. The order prohibits the “destruction of any and all materials associated with the IDNYC program” through at least January 26.
The order is the result of a lawsuit filed by Assemblymember Ron Castorina and Senator Nicole Malliotakis, both Republicans of Staten Island. Their suit challenges the De Blasio administration’s authority to purge the database, and contends that the law which created the program violates the state Freedom of Information Law [FOIL].
A FOIL request filed by Castorina on November 29 sought the disclosure of “all scanned application materials associated with IDNYC.” According to Robert Freeman, director of the Committee on Open Government, the state’s FOIL watchdog, that request triggered a provision of the law that prevents the destruction of any records that are the subject of a FOIL request until an agency, or if need be, a court, determines whether they need to be turned over. Whether the lawsuit has any merit — Miller with the NYCLU doesn’t think it does — is irrelevant for now. The records have to be preserved until the dispute is worked out.
“It doesn’t have to be a legitimate claim for them to file a notice to preserve the records,” Miller says.
Applicants for IDNYC must provide at least three documents proving their identity and one proving residency. The criteria for a New York State driver’s license or ID card are similar; the only substantive difference between the two is that foreign documents — like a passport issued in another country — will qualify for IDNYC. Still, Castorina says he wants access to the records in part to evaluate whether IDNYC poses a security risk.
“I have serious concerns as to the nefarious conduct that could be perpetrated by folks who wish to engage in that kind of conduct with this ID,” Castorina says. “Particularly the opening up of bank accounts for money laundering purposes, or financing of terrorism, or any number of things that someone could do with an alias and a bank account.”
How he would evaluate that risk, even if his request was granted, is far from clear. The state’s FOIL has ironclad exceptions that prevent turning over personally identifying information, so whatever records Castorina received would be stripped of any information that might be remotely useful for his purposes.
While the law that enacted the IDNYC program contains an explicit authorization for purging records after two years, and an optional sunset provision that authorized the administration to destroy the records before a new administration takes office, Castorina portrayed the administration’s plans as something more sinister.
“That an elected official would be in the business of destroying government documents, the only time you hear of stories like that are in regimes like Cuba,” Castorina says. “This is not Cuba. You do not get to destroy ID for the purposes of political agenda.”
State and local governments routinely destroy records for a variety of purposes, Miller counters.
“It’s part of the everyday operation of government for agencies to determine what kind of records they’re going to preserve and for how long,” Miller says.
Castorina also cast doubts on the concern that the database might be used for a Trump-led deportation effort.
“There is no jeopardy, there is no impending danger or doom for people who are undocumented at this time,” Castorina says. “And to say that this is going to be used to round people up is just fear mongering, in its purest sense.”
In a 60 Minutes appearance in November, Trump pledged to immediately deport as many as three million people.
“What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, where a lot of these people, probably 2 million, it could be even 3 million, we are getting them out of our country or we are going to incarcerate,” Trump told the program’s host. “But we’re getting them out of our country. They’re here illegally.”
Miller said her concerns about the database today are the same ones the NYCLU had when the program was enacted, but also said she suspects these records won’t be the Trump administration’s first priority. That’s in part because the IDNYC database might not be the best way to identify people who are out of status. “For one thing, it’s a very messy database with a lot of non-immigrants in it,” Miller says. And the federal government has a variety of other ways to identify deportable residents.
A spokesperson for speaker Mark-Viverito said the Council would fight the lawsuit.
“We remain fully committed to protecting this data and are using every legal resource at our disposal to protect this confidential information from disclosure,” the spokesperson said. A spokesperson for the mayor’s office said he is “absolutely committed to protecting the security of our data. As we continue to review all of our options, we are confident that we can keep IDNYC data private.”
The administration and plaintiffs are due back in court on December 21. Trump will take the oath of office on January 20.