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Oversight Board Stymied by NYPD Denial of Body Camera Footage Requests


police comm confer

(photo: Edwin J. Torres/Mayoral Photo Office)


Amid the ongoing conversation about the way the NYPD handles footage recorded by officer-worn body cameras, more details have surfaced about the reasons the department gives for delaying or denying requests made by misconduct investigators for key pieces of video.

Gotham Gazette recently reported that while prosecutors in district attorney offices get full body-worn camera footage directly from the arresting officer following an arrest, police watchdogs often experience significant delays in obtaining video from the NYPD, if the footage is handed over at all.

Over the course of many months running, roughly a third of Civilian Complaint Review Board (CCRB) investigations have outstanding body camera footage requests. More than half of all footage requests made by the CCRB are pending for more than 30 days (some even longer), which CCRB officials say has contributed to a growing backlog that threatens to derail ongoing investigations.

The CCRB is a civilian agency with Board members appointed by the mayor -- some recommended by the police commissioner or City Council -- and jurisdiction to investigate and prosecute allegations of officer misconduct when the claims involve excessive force or abuse of authority, among others.

The police department’s body-worn camera program hit full implementation across the entire force earlier this year, but the NYPD just last month issued its first “operations order” that indicates how camera footage is reviewed and disseminated to the public or prosecutors. The CCRB is not mentioned in the official policy.

NYPD officials have said, for requests made by the public or the CCRB, the department must edit the footage in order to comply with privacy provisions within the state’s public disclosure laws. Tracking down the relevant footage from any police body cameras on the scene of an incident, and ensuring it is edited to prevent depicting legally protected information, can contribute to the delays, department officials say.

Yet in a July memo to the CCRB, recently obtained by Gotham Gazette, CCRB Director of Quality Assurance and Improvement Olas Carayannis describes additional reasons the NYPD has given to outright deny body camera footage requests. The conditions discussed in the memo may also illuminate causes for the consistent delays in releasing footage to the CCRB, which the NYPD says it is working on and the mayor’s office told Gotham Gazette it will review. There is a City Council oversight hearing on the body camera program set for Monday.

Earlier this fall, NYPD spokesperson Al Baker told Gotham Gazette body camera video could be edited to shield the identities of victims and survivors of sex crimes, which he says the state’s civil rights statute protect. He also said footage can be redacted or omitted to remove images of confidential medical treatment, protected under federal law, or “other prisoners in a cell whose arrest may be sealed.” At a CCRB board meeting in September, Board Chair Fred Davie said there are also cases where the NYPD has withheld footage because it captures the face of a minor.

“With all NYPD patrol officers now outfitted with body-worn cameras, the NYPD collaborates closely with the CCRB to provide footage as expeditiously as possible,” Baker wrote in an email to Gotham Gazette in November. In March, Mayor Bill de Blasio and Police Commissioner James O’Neill announced the completed rollout of 20,000 body cameras to rank-and-file officers.

“That practice is constantly being fine-tuned to offer even faster turnarounds considering that a single request from the CCRB, about a single policing encounter, can mean that lengthy videos from dozens of officers must be carefully reviewed and possibly redacted,” Baker said.

The memo from Carayannis goes further, laying out other reasons the NYPD has given to CCRB investigators, some of which outline grounds for completely denying footage requests in addition to pointing to causes for delays.

Between February 2018 and July 2019, the NYPD has reserved the right to withhold body camera recordings when there is an ongoing investigation by the Internal Affairs Bureau or another body, Carayannis noted. During that time period 41 cases were denied on that basis, six of which “were being investigated by the Force Investigations Division, which often investigates high-profile media cases involving force allegations that are also the CCRB’s jurisdiction,” the memo reads.

“Waiting for the Force Investigations Division to complete its investigation limits the CCRB’s ability to independently investigate these complaints,” Carayannis wrote. CCRB investigations must be completed within an 18-month statute of limitations.

The memo also states that in March 2018, the NYPD began refusing to provide the CCRB footage of incidents when they involved an arrest that was later sealed (a fact WNYC reported in July). “The NYPD considers the entire incident sealed in these instances, and thus all videos related to that arrest become unavailable to the CCRB,” the memo states.

It says, “The NYPD currently has a blanket policy of denying all BWC [body worn camera] requests that are in any way related to a sealed case,” pursuant to the state’s Criminal Procedure Law. In the memo Carayannis reports 81 CCRB requests that had been altogether denied because they were associated with a sealed arrest between March 2018 and July 2019.

Complaints can be made against officers for conduct that takes place during an arrest later sealed, and body camera footage could be essential in those investigations. Sealing records is meant to protect the reputation of an individual who may have had criminal charges dropped or ones that were very minor to begin with.

In April, the New York Supreme Court determined it was illegal for the police department to “us[e] any documents” connected with a sealed arrest, according to the memo. But Carayannis’s memo raises concerns that NYPD “members of service” (police officers) may continue to view body camera footage related to a sealed arrest, despite the ruling.

Carayannis wrote, “the CCRB is aware of multiple instances where the CCRB was denied access to video footage pursuant to [the Criminal Procedure Law], yet the [officer] was able to view the video prior to his/her CCRB interview.”

Video request denials because of a sealed arrest can compound the effect of other obstacles the CCRB says it faces in receiving and analyzing evidence from BWCs. “The backlog in BWC requests will cause the number of BWC videos unavailable to the CCRB to increase drastically, because the likelihood that an arrest is sealed rises with the length of time since an arrest,” the memo stated.

Another reason given by the NYPD to the CCRB for denying certain video requests is the presence of a minor in the sought-after recording. Baker has noted that the depiction of juveniles is a consideration in processing footage requests, writing in a November email, “Our policy for release is guided by State law and ensures that sensitive information involving juveniles or sex crime victims, among other things, is protected.”

Carayannis’ memo expands upon that description, explicitly citing it as a reason given, not only for potential delays in delivering footage, but for wholly refusing requests. Between March 2018 and July 2019, 82 video requests made by the CCRB were denied because of the presence of minors under the age of 18, which the police department said was required under the state’s Family Court Act, according to the memo.

“If you’re really interested in protecting young New Yorkers, if you’re really interested in improving relationships between the NYPD and those young people...then the best way to do that is by ensuring that we hold members of the police department in this city accountable,” CCRB Chair Davie said at the September board meeting.

“Ensuring the city’s police oversight agency has the tools it needs to investigate this misconduct is the best way to protect” young people captured in body camera video, he added.

Despite repeated attempts, NYPD representatives did not provide comment specifically for this story, particularly with regard to questions about denying video footage records requests because of ongoing IAB investigations, sealed arrests, or the presence of a minor.

[READ: New NYPD Body Camera Footage Policy Raises Questions About Editing]

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.

New NYPD Body Camera Footage Policy Raises Questions About Editing


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(photo: William Alatriste/City Council)


The New York City Police Department recently issued the first protocols for the public release of footage from officers’ body-worn cameras, and with them the first explicit mention in departmental policy that the footage may be subject to editing and redaction prior to release.

The policy raises new and recurring questions on the controversial topics of who controls the video and how it is handled, some of which the NYPD has responded to with information about its internal footage-review unit.

On October 18, seven months after Mayor Bill de Blasio and Police Commissioner James O’Neill announced the completed roll-out of the city’s body-worn camera (BWC) program to more than 20,000 uniformed officers, the department published an “operations order” outlining the parameters for reviewing and releasing video of so-called “critical incidents” -- interactions with the public where police force ends in death or serious injury​.​

Critical incidents can also include events that have captured “vast public attention, or concern,” the release of which “will help enforce the law, preserve peace, and/or maintain public order.”

It gives the police commissioner broad authority in determining whether footage should be made public and the extent to which it is censored or redacted in compliance with federal, state, and local law. In multiple instances the new policy makes reference to public safety and privacy concerns, some of which department officials say are protected by state law.

Through the new policy, the NYPD reserves the right to delay or completely forego releasing footage based on considerations like protecting confidential sources, the identity of victims and survivors of sex crimes and domestic violence, or the privacy, life, or safety of an individual -- among many others. In all instances the document leaves the discretion to edit or redact footage within the police department.

After review and possible editing, “the Department will release representative samples of the BWC video(s) depicting the critical incident, as well as, any salient events leading up to the event. Extraneous and/or redundant material may be omitted,” the order reads. “The footage will be redacted (e.g., faces of involved individuals will be blurred, etc.), as appropriate, prior to being released to the public.”

The policy says the NYPD will make a decision about when to release footage within 30 days of a critical incident, but makes no guarantees about the release.

In recent interviews with Gotham Gazette, police officials cited footage editing as one of the reasons for delaying the release of body-worn camera video to the Civilian Complaint Review Board (CCRB), which often requests the footage to assist in its investigations of alleged police misconduct.

Representatives of the CCRB, a civilian agency with jurisdiction over excessive force claims and other types of officer wrongdoing, say it relies on BWC video to substantiate misconduct allegations. Gotham Gazette recently reported that while roughly a third of CCRB investigations have BWC footage requests pending with the NYPD, the department releases unedited footage of arrests directly to prosecutors in district attorney offices almost immediately upon completing a tour.

Al Baker, an NYPD spokesperson, gave the examples of the state’s Civil Rights Law Section 50-b -- which he says requires the department to edit videos involving sex crimes -- and legal restrictions to publicly depicting confidential medical treatment, as reasons for the delay in responding to the CCRB.

“The CCRB disagrees with the NYPD’s interpretation of the law. We are working with the Department on a solution to these issues that satisfies all parties,” wrote Ethan Teicher, CCRB press secretary, in an email. The CCRB believes that unless there is “significant change” in the police department’s practices with respect to the agency’s video requests, the backog will continue to build and further impair misconduct investigations, according to a September tweet.

While listing the broad privacy and legal considerations the NYPD makes in determining whether a body camera video will be edited prior to release to the public, the new policy does not provide details about who makes the decisions to edit footage, what the full editing and release process looks like, and what ultimately gets redacted, omitted, or censored.

According to Baker of the NYPD, that is done by a centralized Body-Worn Camera Unit within the department’s Legal Bureau, housed at police headquarters in lower Manhattan. (Baker says the unit processes footage for both the CCRB and for public release. The public release policy makes no reference to the CCRB.) The BWC Unit is headed by James Conroy, Director of Litigation, Support and Transparency, a civilian member of the police department, and is made up of a combination of civilian and uniformed members, Baker said in a Wednesday phone interview.

Those details and the new operations order around public release of footage raise questions about potential conflicts of interest in editing body camera footage, including for officers under investigation for misconduct.

Asked whether the procedure to process video requests by the public, media, or CCRB involves the officer who wore the camera or others from the officer’s precinct, Baker told Gotham Gazette, “the answer to that is no. The officers who own the footage are not the people editing it. It’s edited in the centralized unit or it’s redacted in the centralized unit.”

An original copy of the footage is kept saved in an NYPD database for one year, according to the department’s patrol guide, regardless of any editing to fulfill a public or CCRB request. The new public release policy states, “Unedited footage of a critical incident will be maintained, and released, to an appropriate investigating authority upon request.”

In January 2018, NY1 reported receiving more than 300 BWC videos through a Freedom of Information Law request from the city’s pilot program recorded during 2014 and 2015, which were “heavily redacted, blacking out interactions between the public and police.” 

Baker did not respond to questions about whether there is a process of approval or feedback from people outside the BWC Unit, like the police commissioner or another top department official, before video is released to the public or to the CCRB.

He also did not immediately provide more information on the BWC Unit, like the size of its staff, the breakdown of its civilian and uniformed membership, and how many lawyers have been assigned to process the footage. It remains unclear whether a legal expert is assigned to each video request where footage must be censored or redacted pursuant to the law, and if there are written guidelines for that type of editing.

“The NYPD has assigned additional personnel to the body-worn camera unit to address the backlog of requests,” Baker wrote in an October email, referring to both CCRB requests and ones made by members of the public under the state’s Freedom of Information Law.

A memo from Olas Carayannis, CCRB Director of Quality Assurance, to the CCRB board in July stated, “While the Department indicated that it allocated four additional people to review BWC requests, the CCRB is not confident that this will address the backlog in a way that will allow the Agency to complete its investigations in a timely manner.”

The CCRB solicits evidence from the NYPD exclusively through the department’s Internal Affairs Bureau, according to the department’s patrol guide. How the BWC Unit works with Internal Affairs does not appear to be described in any NYPD protocols.

“As of June 26, 2019, the CCRB had 788 unfulfilled requests for BWC footage from IAB, some of which had been made months earlier,” wrote Carayannis.

On Monday, the City Council Committee on Public Safety, chaired by Queens Democrat Donovan Richards, will hold an oversight hearing to examine the body camera program after its first months of full implementation. Along with providing new information about the CCRB backlog and the NYPD footage-editing process, the hearing may illuminate other questions like how officers are adapting to turning on cameras during interactions with the public, as required by departmental policy, and what the department is doing to ensure officer compliance with protocols related to the new technology.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

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Department of Investigation to Publicly Track City Agency Compliance with Recommended Reforms


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DOI Commissioner Margaret Garnett (photo: John McCarten/City Council)


The Department of Investigation, a watchdog agency tasked with rooting out waste, fraud, and abuse in city government, issues hundreds of recommendations each year, urging other city agencies to reform their procedures and enhance the services they provide. It’s not always apparent to the general public, or even elected officials, whether agencies comply with those suggestions, which are typically based on extensive investigations.

But the department has now promised a new database next year that will provide a window into the agencies that are willing and able to improve and those that are resistant or incapable to do so. At the same time, the City Council may codify that database into law.    

Council Member Ritchie Torres, a Bronx Democrat who chairs the Council’s Committee on Oversight and Investigations, is pursuing legislation that would mandate that DOI create an online, public-facing database to track the various Policy and Procedure Recommendations (PPRs) that it makes every year and how agencies are or aren’t implementing them. The legislation has three other sponsors and was the subject of a Council committee hearing on Wednesday chaired by Torres. 

DOI’s recommendations are just that, recommendations, and agencies are not beholden to them. An agency can choose to “accept” or “reject” recommendations and, even when they are accepted, there is no guarantee they will be implemented.

“Without systematic tracking by DOI, agencies have no incentive to implement reforms, and the public has no means of knowing whether agencies are implementing reforms as promised,” Torres said in his opening remarks at the hearing. “An investigation is only as good as the real-world result it produces. It is only as good as the follow-up and the follow-through. As a city, we cannot afford a hit-and-run approach to investigations. We cannot content ourselves to issue reports and then move on to the next order of business.”

Torres has a willing partner in DOI. At the hearing, Commissioner Margaret Garnett said the department has been working for the last year to create a database along the lines of Torres’ bill. It will report on recommendations made, those that are accepted, rejected, and implemented (all of which is required by the bill) and would record agency explanations on implementation, if provided. 

“The idea is significant,” she said, “providing a window for the public into DOI’s compelling work in a way that goes beyond our press releases on arrests or our public reports, and reflects the wide-reaching impact our investigations have on the city.” 

Garnett noted that DOI already publishes some information about PPRs in the annual Mayor’s Management Report. Between the 2015 and 2019 fiscal years, the department issued a total of 4,669 recommendations to agencies. Currently, DOI only reports on the percentage of recommendations accepted by agencies in sum, and that does not get at how many have been implemented. For instance, in fiscal year 2018, DOI issued 2,538 recommendations, 56% of which were accepted. In previous years, there were far fewer recommendations but they were accepted at a much higher rate. (The report does not show how many of the 549 recommendations from fiscal year 2019 were accepted.)

Garnett said DOI will provide that new information, about the percentage of reforms accepted and implemented, in the MMR for the 2020 Fiscal Year. The larger database will be made public by the summer of 2020 or potentially earlier, she said. 

Garnett acknowledged that DOI has not had an effective centralized method so far to track how its recommendations have been implemented. “In the past, that had been a process that had been located more with individual [Inspectors General] for the agencies, and different inspectors general at DOI had different methods for keeping track and for following up with agencies,” she said. The new database will provide both the public and the department internally with a tool that “would show all of the PPRs and an accurate and up-to-date assessment of where the agencies are in both agreement and implementation,” she added.

Garnett did caution the committee against mandating a ranking of the reform recommendations in any public database or using it to grade individual agencies for compliance. “All PPRs are not created alike,” she said in her opening statement. “Some address relatively minor issues while some address significant systemic changes. Some are more costly or difficult to implement while others may require the approval or cooperation of other entities.”

As Garnett pointed out, PPRs span across city agencies. For instance, a 2015 report on the NYPD’s use-of-force policies included 15 recommendations on policy, training, discipline and documentation procedures. A 2016 investigation of the Administration for Children’s Services yielded five recommendations on case management and employee discipline. A 2017 report on the New York City Housing Authority’s failure to conduct mandatory lead paint safety inspections made five broad recommendations on compliance and reporting. 

One notable exception from the database will be the Department of Education, which falls under the purview of the Special Commissioner of Investigation for the New York City School District. Garnett’s predecessor, Mark Peters, infamously tried to wrest control of SCI and was fired by the mayor for overstepping his authority (though Peters and others have also claimed that de Blasio was unhappy with how aggressively Peters had approached his work holding city agencies accountable, and a possible investigation into the mayor’s office over a stalled DOE examination of yeshiva education that some believe de Blasio himself has slow-walked). SCI is independent of DOI but must report certain information to it. 

“A dashboard that fails to include one-third of city government is deeply deficient,” Torres said, referring to the massive DOE. “And that might be a major point of disagreement between DOI and the Council. And this is a point on which I'm going to push very hard. But it feels like it would be odd not to include the largest city agency, or city entity, in the dashboard.”

Garnett was open to the idea. “I think that's certainly something that we can explore,” she said.

Garnett did reject an idea put forward by Torres that the online dashboard allow comments from the public. 

“Is there going to be some mechanism by which the opinions of external stakeholders are going to be included in the dashboard as DOI envisions it?,” Torres asked. “Is that something you're open to?”

“That, for a variety of reasons, is a challenge that I think is beyond our ability to implement,” Garnett responded. “The information that is currently going to be in this PPR tracking database is all information that is sort of in the possession and control of DOI.” She noted that simply making the information available to the public would allow individuals, elected officials, community groups and advocates to hold agencies to account. 

“Personally, I don't know how much time you spend on the internet, Chairman Torres, but I'm not sure that a publicly open comment field is useful,” she joked.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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