NYPD Refuses to Release Records on Undercover Surveillance of Black Lives Matter Protesters

By Keegan Stephan, Mass Appeal

09 December 16

The NYPD lied about having undercover officers at the demonstrations, he noted, and further lied about having records relating to these demonstrations.

uring a hearing at New York Supreme Court on Wednesday, the NYPD argued that it should not have to disclose records pertaining to its undercover surveillance of the Black Lives Matter movement.

In court papers (PDF doc), the nation’s largest police department admitted that it has records of communications between undercover officers surveilling the Black Lives Matter movement and their handlers, as well as multimedia records collected by those officers.

The existence of these records came to light through a Freedom of Information request filed by a Black Lives Matter activist during the height of the movement’s demonstrations in NYC. The activist sought all records collected by police officers in Manhattan’s Grand Central Terminal from November 2014 though January 2015. At the time, Black Lives Matter demonstrators were gathering in Grand Central daily, and the activist witnessed police officers from the MTA, Metro-North, and NYPD photographing and filming the demonstrations, so he requested records from all three agencies.

The NYPD initially said that it had no responsive records. However, the MTA and Metro-North released hundreds of pages of records that contained photographs of the protests and protesters, along with communications between police officers. City officers were cc’d on almost all of these communications, and many of them, including some of the photographs, originated from the NYPD. The records stated that the names of undercover officers were redacted, and several names and e-mail addresses were in fact redacted throughout.

The activist released these records to The Intercept, which ran an article on the disclosure under the headline “Undercover Police Have Regularly Spied on Black Lives Matter Activists In New York.” In a follow-up article on the Huffington Post, Deputy Commissioner Stephen Davis of the NYPD “disputed The Intercept’s characterization of officers as ‘undercover’ and said they were merely in plainclothes.”

The NYPD also continued to deny it had any records responsive to the Freedom of Information request, and stated that if it did have any records, they would be exempt from disclosure, citing multiple exemptions.

Aware the NYPD had responsive records based on the MTA and Metro-North disclosure, and curious if the NYPD had more records than were disclosed by the other agencies, a group of activists and attorneys, including myself, sued to compel the production of the records.

In their reply papers, the NYPD admitted it did, in fact, have more records. The NYPD also said that it did, in fact, have undercover officers surveilling the Black Lives Matter Movement in NYC, despite what it told the press after the MTA and Metro-North disclosures.

In court, the NYPD argued that it should not have to disclose these records for three reasons: (1) that they would reveal the identity of the undercover officers, putting their lives in danger; (2) that they would reveal the NYPD’s undercover tactics, rendering them less effective; and (3) that they would reveal technology used by the NYPD, leaving it vulnerable to malicious hacks. The NYPD claims these reasons satisfy exemptions under the Freedom of Information Law.

Petitioner’s counsel, David Thompson, of the law firm Stecklow and Thompson, argued that this reasoning does not satisfy the FOIL exemptions. He noted that the names of the undercover officers could easily be redacted, as they were in the records released by the MTA and Metro-North, and consistent with FOIL. Only step-by-step instructions of undercover tactics are exempt under FOIL, he said, not communications, facts, and images, which is what the NYPD has claimed it has and what the MTA and Metro-North released.

He responded to police claims that the NYPD’s camera surveillance system could be hacked if people knew what kind of cameras were in use, by showing the court multiple photographs of NYPD surveillance cameras visible in the NYC subway, that have not only the brand, but the model number of the camera displayed where any member of the public could see it. He also submitted expert testimony (PDF doc) stating that all metadata contained in multimedia files can be easily and completely scrubbed before disclosure.

Finally, he argued that the court should not take the NYPD’s word that these documents fall into any exemption. He noted that the court is permitted to order an in camera review of the documents to determine if they are exempt, and pointed out that this may be called for in this matter since the NYPD has been dishonest about the existence and contents of the records throughout. The NYPD lied about having undercover officers at the demonstrations, he noted, and further lied about having records relating to these demonstrations.

Indeed, the mere existence of these records raises legal questions. Under court-ordered guidelines, the NYPD is not supposed to keep images and files on first amendment protected political activity outside of a criminal investigation. Nothing in the NYPD’s papers state that it ever had an open criminal investigation related to these demonstrations, yet the department sent undercover officers to these protests, created multimedia files of them, and generated records about them. And the NYPD maintains those records to this day, almost two years later. The Office of the Inspector General recently released a report (PDF doc) condemning the NYPD for failing to follow the court-ordered guidelines in its investigations of political activity, but no specifics were made to its surveillance of Black Lives Matter.

After the hearing, Thompson said that the concern is that the NYPD is maintaining these records and creating dossiers on peaceful political activists. He noted that this type of policing is contrary to a free and open democracy, and is the exact reason that Freedom of Information laws were created. Historically, Freedom of Information laws were created after surveillance of political activists, such as Martin Luther King Jr., were reveled, and the public generally found these surveillance tactics unacceptable.

Lesley Berson Mbaye, the attorney for the NYPD, said that Thompson “claimed” there was no open criminal investigation, but produced no evidence that there ever was, let alone still is. If there is still an active investigation, this begs the question of whether these undercover officers are still operating in the Black Lives Matter Movement in NYC today. If they are, that may support the NYPD’s reasons for invoking exemptions, but it bolsters larger concerns about the extent of the NYPD’s undercover activity in the movement. It is now a matter of public record that an undercover NYPD officer assigned to the Occupy Wall Street movement attended not only public demonstrations, but also private, social events, and did so long after the large demonstrations in Zuccotti Park were dismantled. It is also worth noting that this officer was outed for instigating violence at another, unrelated event, for which he was convicted of multiple crimes.

Mbaye also condemned Mr. Thompson for questioning the honesty of the NYPD officers who had denied the FOIL requests. She said the NYPD was not required to say what records it had that were exempt under FOIL.

M.J. Williams, another attorney working on the case, said this was a misinterpretation of the law. Mbaye, she said, “misguided the court as to the law in an effort to win.”

In an e-mail to Mass Appeal, Thompson said, “I always think it is amusing when the City attorneys pretend to be outraged when I call the NYPD out on presenting false information to the court. Of course there is a simple solution — the NYPD could stop making false statements of fact and law in court.”

The judge stated that he will further review the case and issue his opinion online.