Months after a court ordered the NYPD to turn over records of its surveillance of Black Lives Matter protesters, the lawyers seeking those records say the police and the New York City Law Department lawyers representing them still haven’t complied with the court order — and may have lied in court. In a motion filed this afternoon, attorneys have asked the judge who heard the case to hold the police and the city in contempt and to levy monetary sanctions against them.
The case began when James Logue, a New Yorker taking part in a Black Lives Matter protest in Grand Central Station in November 2014, noticed that the demonstration was being recorded by plainclothes police officers. Logue believed that action violated the restrictions on when the NYPD is allowed to conduct surveillance on citizens’ political activity, and in January 2015 he filed a request with the NYPD under New York’s Freedom of Information Law to determine just how much surveillance was going on.
The NYPD has been widely criticized as a particularly egregious offender when it comes to violating state laws on transparent government. “The NYPD has been in so many ways hostile to Freedom of Information Law,” Bob Freeman, executive director of the state’s Committee on Open Government, tells the Voice. In 2011, the New York Times sued the department, saying it had “routinely violated” the law. Two years later, Mayor Bill de Blasio, then Public Advocate, gave the department an “F” for transparency. Earlier this year, the mother of Ramarley Graham announced she was suing the NYPD after it refused to give her documents she’d requested that might shed some light on how her son was killed by police in the Bronx five years ago. And it took a lawsuit, settled last month, just to get the department to accept Freedom of Information requests by email, even though the law has required it to do so for a full decade.
After the NYPD rejected Logue’s FOIL request and his appeal, in May of last year he sued the department in what’s known as an Article 78 hearing, alleging the NYPD was illegally stonewalling his request for information. The Law Department strenuously argued in response that to turn over information about how the NYPD was spying on protesters would make New Yorkers less safe, exposing them to terrorist attacks. But this February, Justice Manuel Mendez ruled that the city lawyers’ arguments were inadequate, ordering the NYPD to turn over its surveillance records within thirty days.
But that’s not what happened. After the ruling, the NYPD did turn over some surveillance material that showed, among other things, that undercover officers had posed as Black Lives Matter protesters and gained access to text loops used by organizers to coordinate demonstrations. The department also turned over redacted emails between undercover officers and their handlers, plus a handful of still photographs of demonstrators and a single video shot with a handheld camera.
But as they examined the material that the NYPD had turned over, Logue’s lawyers, David Thompson and M.J. Williams, came to the conclusion that the NYPD still hadn’t turned over all its material, even after being ordered to by a court of law. For one thing, though Justice Mendez had indicated that the department could redact only “identifying information…of the NYPD undercover officers, their handlers, and the base” in emails, the records turned over by the NYPD also redacted useful information like the dates and times the emails were sent.
Thompson and Williams also noticed the lack of still and video images from any stationary surveillance cameras — which is odd, since the city had an explicit argument against turning over this kind of material, implying it did exist. During the case, the city had argued that it couldn’t turn over such footage because it might indicate to terrorists weaknesses in the NYPD’s protections. In a sworn affidavit submitted in the case, Assistant Chief John Donohue, executive officer of the NYPD’s Intelligence Bureau, testified that turning over camera evidence could “reveal the kinds of optical technology NYPD uses, both in its undercover and general surveillance operations. Additionally, these records would show not only which areas were under surveillance, but also the inverse: specifically, any areas NYPD does not have under surveillance, thereby exposing gaps in coverage.”
“He said disclosure would reveal the blind spots in the [surveillance] network,” Thompson explains. “Then when they turn over the material, we get one video. From a handheld camera!” For Thompson, that means one of two things had to be true: “Either what Chief Donohue said wasn’t just bullshit, it was perjury; or they are withholding video, and they’re in contempt of the court order.”
Over the last few weeks, Thompson said as much in letters to the Law Department, urging it to turn over any remaining videos. But the NYPD has refused to budge. Thompson warned the Law Department that his next step would be to seek contempt charges for the NYPD’s failure to comply with the court order, as well as sanctions against the NYPD and the Law Department for misrepresenting the nature of the evidence in court.
Last Monday, the Law Department wrote an extremely unusual letter to Justice Mendez, saying that even to adequately explain its position on whether it had fully complied with the court order “would require NYPD to reveal or explain non-routine law enforcement techniques, and also would implicate issues of public safety and security…. Although NYPD is confident it can explain why Petitioner’s objections and concerns regarding NYPD’s production are without merit, the nature of NYPD’s response constrains it from explaining its position except privately to Your Honor.” The Law Department then requested a private meeting with Justice Mendez without the plaintiffs present.
There were any number of problems with this request, Thompson and Williams argued in their own letter to the judge:
Seen in the very best light possible, Respondents’ request seeks to convene an unheard-of ex parte proceeding to provide the Court with previously withheld information that they now claim the Court actually needed to properly adjudicate this matter. Or, alternatively, Respondents are seeking to argue the old facts anew, this time without the hindrance of a counterparty to answer those arguments. In either scenario, this is an extraordinary request signaling a radical demand to upend both law of the case and basic American procedural guarantees. To exclude Petitioner from an unprecedented proceeding to modify the Judgment and Order would not only be unlawful, but would additionally reward Respondents for their continual falsehoods and their non-compliance with law that has been, throughout both the administrative FOIL process and the litigation that followed, uniquely remarkable and shameful.
Asked about the city’s request for a private meeting with the judge, Thompson is even more blunt. “It’s insane,” he says. “We have not yet gotten to the stage in this country where we have trials with only one party present. Remember, this case is about FOIL, the sunshine law that exists for the purpose of granting greater access to what’s happening inside government to the people so they can have better control over their government. So to seek to upend court procedure, the constitution, not to mention one thousand years of English common law, in this context, where we’re talking about the sunshine law — that’s chutzpah!”
If the NYPD has top secret arguments why it can’t comply with the FOIL request, it should have presented them at trial, Thompson says, or appealed the judge’s ruling to a higher court. It did neither.
“This isn’t us saying, ‘Nyah-nyah, you missed your chance,’ ” he says. “There’s a principle involved: The only reasons we have all this surveillance, supposedly, is to protect the American way, which is truth and justice, not lies and kangaroo courts and the government does whatever it wants.”
Freeman, director of the state agency tasked with overseeing government transparency and adherence to the Freedom of Information Law, says he also finds the city’s behavior concerning. “If we refuse to abide by orders issued by judges, and we fail to appeal, it seems to me we’re inviting chaos,” he says. “The Freedom of Information Law requires government agencies to demonstrate how and why disclosure would somehow be damaging. It seems the NYPD was unable to do so before the judge. So do we just ignore court orders in this country? I hope not. This is supposed to be a nation of laws, where we rely on the judicial branch to make these determinations.”
The NYPD did not respond to requests for comment.
The Law Department disputes the suggestion that the NYPD has failed to turn over all the material it is required to. “We take no issue with and are in compliance with the court’s order,” Nick Paolucci, director of public affairs and press secretary for the department, tells the Voice. “As we mention in our letter to the court, there are exceptional circumstances which warrant an ex parte in camera conference with the judge.” (Paolucci did not respond to follow-up questions.)
The NYPD’s lawyers now have until September 30 to respond to the motion for contempt and sanctions filed today.
You can read the full Memorandum of Law from Logue’s lawyers arguing for sanctions and a contempt finding against the city here.