For more than five years, Constance Malcolm has been searching for some sort of official explanation for how her unarmed 18-year-old son, Ramarley Graham, came to be shot to death in his own home by police officers.
So far, Malcolm’s efforts have been met with one disappointment after another. An indictment of Richard Haste, the officer who killed Graham, was thrown out after prosecutors gave improper instructions to jurors. A second grand jury failed to bring an indictment. Last year the Department of Justice declined to take up an investigation.
One of the last remaining avenues for Malcolm to understand why more than a dozen officers broke into her home without a warrant and shot her son came last month, when the NYPD conducted its own administrative trial of Haste. The question considered was narrowly constrained — did Haste violate the NYPD’s procedural guidelines? — and compared to a criminal trial, the stakes were low: at worst, Haste might lose his job. Civilian witnesses — whose accounts differ significantly from official ones — were not invited to testify. A month after the proceeding, Graham’s family has heard nothing about the outcome.
There’s one other way Malcolm might manage to shed some light on her son’s death. Last September, she filed a Freedom of Information request with the NYPD seeking records related to her’s son’s killing. The request was thorough and comprehensive, running 24 pages, and asked for everything from Unusual Occurrence reports, police radio transmission records, and officers’ activity logs to NYPD policy documents, grand jury statements, and the notes police leadership relied on when speaking to the press about the incident.
The NYPD responded that it would require 90 business days to review the request and determine if any of the records Malcolm was asking for were exempt from disclosure. Then, this week, Malcolm received a five-sentence reply. “I must deny access to these records on the bases of Public Officers Law Section 87(2)(e)(i),” wrote NYPD Records Access Officer Richard Mantellino, “as such records/information, if disclosed would interfere with law enforcement investigations or judicial proceedings.”
“Families whose loved ones are killed by the NYPD shouldn’t have to file extensive FOIL requests, as we did, to beg for basic information from the city and then have our requests denied,” Malcolm said last week at a press conference in front of City Hall. “Yet this is the reality under Mayor de Blasio and Commissioner O’Neill — it’s shameful and there’s no excuse for it.”
Bob Freeman, the director of the New York State Committee on Open Government, which oversees compliance with Freedom of Information Law, said the NYPD’s response won’t pass legal muster.
For one thing, Freeman said, simply asserting that releasing records would damage a proceeding isn’t enough to withhold them. “What they’re doing here, it seems to me, is they’re speculating,” he says. “The Court of Appeals has said speculation regarding impact of disclosure is not enough to prevail. You have to demonstrate that disclosure would result in actual harm.”
It’s not clear what judicial proceeding or investigation might be compromised by release of the records: both state and federal criminal avenues have been closed, and Malcolm’s civil suit against the city has been settled. It’s possible that the NYPD is interpreting the law to include disciplinary proceedings; though Haste’s departmental trial concluded last month, NYPD leadership has said that two other officers involved in Graham’s death, Sgt. Scott Morris and Officer John Mclaughlin, will also face departmental hearings. “I don’t know if disciplinary hearings were contemplated as being covered by that exemption, but it’s not inconceivable that it could apply,” Freeman said.
But it’s hardly plausible that Malcolm’s request for “Documents reflecting NYPD policies in 2012” must be kept secret for fear of compromising an investigation, or that “Communications with the press by the NYPD and statements to the press made by the NYPD” cannot be allowed to see the light of day for fear of derailing the wheels of justice.
Responding to twelve pages of detailed, specific record requests with a single sentence denial does not meet the legal standard, Freeman said. “The state’s highest court has rejected what it calls the ‘blanket denial’ of access,” he said. “An agency is required to review the records sought line-by-line to determine which portions if any can justifiably be withheld. It is inconceivable that every line of every page could justifiably be withheld.”
Malcolm has appealed the denial of her request to the NYPD’s Records Access Appeal Officer. He has until March 10 to reply. After that, Malcolm and her legal team say, unless they get what they’re looking for, they’re prepared to sue to get their request honored.
“After more than five years since my son Ramarley was killed, this can’t be considered due process as Mayor de Blasio likes to say — it delays accountability and that sends a dangerous message to all NYPD officers and New Yorkers,” Malcolm said last week. “It’s been over a month since Richard Haste’s trial ended, and my family still doesn’t have a decision on if Haste will be fired or information on whether or when NYPD trials into Sgt. Scott Morris, Officer John Mcloughlin and other officers responsible for the killing of Ramarley and abusing our family will ever happen. It’s time for de Blasio and O’Neill to release the information, fire Richard Haste, and begin the trials into all the other officers involved.”
The NYPD did not respond to requests for comment for this story, nor did spokespeople from Mayor Bill de Blasio.