New York, NY – This week, lawyers for Gwen Carr, mother of Eric Garner, Communities United for Police Reform (CPR), and the Justice Committee filed Article 78 lawsuits against the NYPD and the CCRB to obtain full disclosure of records in response to an August 2019 FOIL request sent to both agencies, including materials related to the NYPD’s and other City agencies’ actions to investigate and discipline officers responsible for Eric Garner’s killing.
Over the past two years, both the NYPD and CCRB have slowly trickled out records in response to the FOIL, often with heavy redactions. Eventually, after repeated (and often unexplained) delays, and administrative appeals, both agencies produced a significant number of records. But they both also redacted, and frequently just withheld, many more broad categories of records, citing exemptions from the FOIL’s disclosure requirements in “blanket” denials without showing that or why they were allowed to rely on them.
In many cases, they withheld records that had for years been protected from disclosure by Civil Rights Law 50-a – a law CPR fought and won the repeal of over a year ago – claiming, instead of 50-a, that NYPD and civilian witness privacy interests outweigh the public’s interest in seeing certain records about investigations and disciplinary proceedings. For example, the NYPD refused to disclose any police disciplinary records unless there was both an investigation and a “subsequent hearing or disciplinary action” and refused to disclose any records of complaints or investigations with unsubstantiated, unfounded, or exonerated complaint outcomes. The CCRB has relied on the same privacy grounds and an exemption for deliberative intra- and inter-agency records, to withhold or redact recordings and transcripts of witness interviews, the names of civilian witnesses who participated in the CCRB investigation, and certain CCRB logs, transcripts, correspondence, and other records.
The NYPD’s handling of the FOIL request was especially obstructive. The NYPD claimed the FOIL did not adequately describe some of the records sought, when it had. For example, the FOIL describes that Mr. Garner’s sealed criminal history information and private medical information was leaked to the press. The FOIL asked for records reflecting any investigations into those leaks. The NYPD said the request didn’t “reasonably describe” which records. Beyond that, the NYPD said it searched for, but couldn’t find, among other records, any communications (including e-mails) between and among the NYPD and the Mayor’s Office about Mr. Garner’s death or any related investigation or discipline, or any records documenting the police operations around untaxed cigarette sales in the neighborhood that police say led them to target Mr. Garner. Other records, the NYPD claimed it had located, but would be too hard to produce. For example, the NYPD said it found 17,869,183 “unindexed items” like “scanned PDFS” that respond to a single request for e-mails and other communications between the NYPD and the NYC Law Department regarding Mr. Garner’s death and subsequent investigations, but that searching through, reviewing, and disclosing those records would “require extraordinary efforts not required under the FOIL.” Still other records, the NYPD claimed to have produced, when it had not.
The Article 78 lawsuits ask, among other things, that the New York State Supreme Court review both the NYPD’s and the CCRB’s handling of the FOIL request and order prompt disclosure of all responsive records, including un-redacted (or less-redacted) versions of previously produced records, and production of all other records the FOIL request asks for that the agencies have not properly justified withholding.
Organizers say a full response to this FOIL request from both agencies would provide critical transparency around the killing of Eric Garner and the subsequent cover-up, including related to investigations and refusal to discipline all NYPD responsible for misconduct. The NYPD and CCRB must stop hiding critical information. They are demanding an immediate response to the latest Article 78 filings, as full FOIL disclosures would facilitate examining key witnesses in the related judicial inquiry into Eric Garner’s killing, scheduled for October 25.
Below are statements from Gwen Carr, mother of Eric Garner, Loyda Colon, Executive Director of the Justice Committee, and a lawyer for the petitioners, Gideon Oliver, police misconduct attorney and a past President of the New York City Chapter of the National Lawyers Guild in response to their filing of the Article 78 lawsuit against the NYPD. Petitioners are also represented by Alvin Bragg, Co-Director of New York Law School’s (NYLS) Racial Justice Project and former NYS Chief Deputy Attorney General.
“We have been fighting in every way we can to finally get answers about my son’s murder and the cover up that followed,” said Gwen Carr (she/her), mother of Eric Garner. “The NYPD and Mayor de Blasio have been hiding information and protecting NYPD officers who helped kill Eric and cover it up for more than 7 years. We’re going to keep demanding accountability and transparency in the streets, in our city and state government, and certainly in the courts. We have a judicial inquiry set to begin on October 25th, and the City has taken every opportunity to delay and obstruct. We need full transparency before then.”
“It’s been 2 years since we filed our initial FOIL requests to get information about one of the most high-profile police killings in the country and in the world,” said Loyda Colon (they/them), spokesperson for Communities United for Police Reform and Executive Director of the Justice Committee. “Mayor de Blasio and the NYPD are still acting like 50a was never repealed—they’re continuing to protect NYPD officers who commit misconduct. We’re suing for full and complete disclosures of the documents and records we demanded two years ago, because we know bringing that information to light will finally bring transparency to Eric Garner’s killing and help us fight for Black, Latinx, and other New Yorkers of color who have been brutalized and killed by the NYPD. We have a court date, there will be a judicial inquiry, and we will continue to demand the firing of all officers responsible for Eric’s killing.”
“Ms. Carr deserves every scrap of paper these agencies have not yet produced having to do with her son’s death and the City’s – and, especially, the NYPD’s – failures to investigate and discipline the involved NYPD members,” said Gideon Oliver, lawyer for the petitioners. “We will use these cases to push for maximum possible transparency and accountability.”
Background:
On August 27, 2019, Gwen Carr, the Justice Committee, and Communities United for Police Reform, submitted a Freedom of Information Law request to the NYPD and the Civilian Complaint Review Board relating to Mr. Garner’s arrest and killing. The FOIL request sought materials related to the NYPD’s and other City agencies’ actions to investigate and discipline officers responsible for Eric Garner’s killing.
The NYPD and CCRB have since withheld records that had for years been protected from disclosure by Civil Rights Law 50-a – a law CPR fought and won the repeal of over a year ago – claiming, instead of 50-a, that NYPD and civilian witness privacy interests outweigh the public’s interest in seeing certain records about investigations and disciplinary proceedings. The agencies have not yet provided full disclosures, leading petitioners to file two Article 78 proceedings in NY State Supreme Court on September 13, 2021.
Also on August 27, 2019, the New York Law School Racial Justice Project and the Law Offices of Gideon Oliver filed a historic petition on behalf of Gwen Carr, mother of Eric Garner, Ellisha Flagg-Garner, sister of Eric Garner, Constance Malcolm, mother of Ramarley Graham, Loyda Colon of Justice Committee, Joo-Hyun Kang of Communities United for Police Reform, Monifa Bandele of Malcolm X Grassroots Movement, Mark Winston Griffith of Brooklyn Movement Center, and Kesi Foster of Make the Road New York, against the Mayor of New York City, the NYPD Police Commissioner, and other New York City officials. The petition was brought under Section 1109 of the New York City Charter, a “sunlight” provision.
Petitioners are demanding an immediate response to the latest Article 78 filings, as full FOIL disclosures would facilitate examining key witnesses in the related judicial inquiry into Eric Garner’s killing, scheduled for October 25.
About Communities United for Police Reform
Communities United for Police Reform (CPR) is an unprecedented campaign to end discriminatory and abusive policing practices in New York, and to build a lasting movement that promotes public safety and reduces reliance on policing. CPR runs coalitions of over 200 local, statewide and national organizations, bringing together a movement of community members, lawyers, researchers and activists to work for change. The partners in this campaign come from all 5 boroughs, from all walks of life and represent many of those most unfairly targeted by the NYPD.