Without Any Legal Basis, The NYPD Has Been Classifying Its Own Documents For More Than A Decade

from the aw,-how-cute!-it-thinks-it's-above-the-law! dept

Thu, Sep 19th 2013 3:35am — Tim Cushing

Under the guidance of Chief Ray Kelly and Mayor Mike Bloomberg, the NYPD has transformed into an autonomous militarized force. Technically, it answers to Bloomberg and Kelly, but they've both shown extreme amounts of resistance to reining in any of the PD's excesses.

Any attempts at bringing oversight and accountability to the force are met with anger and condescension, despite the fact that the NYPD's casual abuse of New Yorker's civil liberties are the subject of major lawsuits and city council legislation, as well as a sizable contributor to the city's annual outlay of $700-800 million in settlements.

We've previously discussed the department's secretiveness that has seen it described by investigative journalists as worse than the NSA and FBI when it comes to responding to FOI requests. (Not for nothing does the New York law governing these requests do business under the acronym "FOIL.") But the NYPD is doing something no other city law enforcement agency has done: classifying its own documents.

Since at least 2003, the New York Police Department has been labeling some of its internal documents "Secret," a designation that has baffled government secrecy experts, journalists and civil liberties lawyers.

By labeling documents "secret," the Intelligence Division appears to be operating its own in-house classification system, similar to those used at federal agencies like the CIA, where Intel's chief, David Cohen, previously worked for 35 years.

Some of the documents also include the caveat, in all-caps, that "No portion of this document can be copied or distributed without the exclusive permission of the policy commissioner or deputy commissioner of intelligence."

Why is this "baffling?" Because the NYPD's in-house classification system has nothing legal to back it up.

"You know what that [label] means? It means diddly," said Robert Freeman, executive director of New York's Committee on Open Government. "I think the police department is following the lead of the federal government. The difficulty is, in my opinion, it does not have a legal basis for doing that."

Christopher Dunn, associate legal director at the New York Civil Liberties Union, told HuffPost he has only seen the label on documents created after 2001. He agreed with Freeman that "as far as I know, this marking has no legal significance."

The NYPD remains a law unto itself. Bloomberg has referred to it as the "seventh biggest army in the world" (and his own "personal army") and has, over the course of his three terms, indulged every excess. It should be noted that former CIA officer David Cohen got the ball rolling on the civil liberties-violating "Demographics Group" (the one that labeled entire mosques as terrorist entities) late in 2002, which would explain the noticeable uptick in "SECRET" documents in 2003. Nothing drives overclassification more than a combination of dubious legality and working hand-in-hand with national intelligence agency liaisons.

And it would appear that the NYPD still has lots of secrets it's not willing to share with the public. HuffPo points to this story from 2011 in which Chief Kelly makes the claim that the NYPD could "take down an airplane" thanks to its anti-aircraft weaponry. That itself should be troubling enough and a strong indicator that Bloomberg and Kelly are better qualified to run a banana republic than an American city, but when asked to comment on the PD's anti-aircraft guns, Bloomberg responded with this smirk of a statement:

"New York City Police Department has lots of capabilities you don't know about and you won't know about them."

That's comforting. Nothing like having the commander-in-chief of the "seventh biggest army in the world" tell you his force might have even bigger tricks up its sleeve than anti-aircraft weapons.

On the bright side, Mayor ~~for life~~ Bloomberg will be leaving soon and the front runner for his position, Bill De Blasio, gave the police force a failing grade for its responsiveness to FOI requests and will be likely looking to force the PD to shoot for a low-C at minimum. If Chief Kelly sticks around, though, De Blasio will have an uphill battle to fight against the ingrained arrogance and contempt that pervades the NYPD's upper management.

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Filed Under: classification, michael bloomberg, nypd, ray kelly, secret

28 Comments

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Ninja (profile), 19 Sep 2013 @ 4:05am

If Chief Kelly sticks around, though, De Blasio will have an uphill battle to fight against the ingrained arrogance and contempt that pervades the NYPD's upper management.

If the guy wins he can simply take Kelly out. Along with several people that could hinder any improvement. Happens all the time in politics.

Now, if the Federal sphere is walking that path with no shame or punishment what to expect?
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Anonymous Coward, 19 Sep 2013 @ 4:06am

What is wrong with Americans?

Every society has odd balls but in America they appear to be the majority.
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Anonymous Coward, 19 Sep 2013 @ 4:31am

Wait...why does a police force need anti-aircraft weaponry?
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Anonymous Coward, 19 Sep 2013 @ 4:39am

Re:
To stop people spying on them with little UAVs.
/sarc
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miatajim (profile), 19 Sep 2013 @ 4:39am

Re:
Cause toys.
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Anonymous Howard, Cowering, 19 Sep 2013 @ 4:42am

@AC #2
Beacuse bringing a possibly rogue airliner down in multiple flaming pieces over a residential neighborhood is preferable to letting it hit a business-oriented office tower complex whose owners are/could be big political contributors?
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Paul Renault (profile), 19 Sep 2013 @ 4:45am

There's no need to defer to 'Legal Experts'
In modern democratic (esp. common-law) countries, the meta-law is
1) As an individual, you're allowed to do anything you want, unless there's a law specifically making it illegal;
2) As a government, you're allowed to do nothing, unless there's a law specifically allowing you to do a particular act. (with thanks to

Clear enough?
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Anonymous Coward, 19 Sep 2013 @ 5:00am

Re:
In case the peasants get private aircraft?

Justifying the budget?
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Anonymous Coward, 19 Sep 2013 @ 5:48am

the two obvious reasons for this are

a)everyone else seems to be doing it and NYPD didn't want to be left out

b)they have a hell of a lot to hide

i would like to see, now that this has come out, what will happen, if anything and how long it will take?
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The Real Michael, 19 Sep 2013 @ 5:50am

There is a direct correlation between the security they present to the public and the authoritarian police state they desire to unleash. Question is, who's funding their efforts? Here's one clue: http://www.youtube.com/watch?v=SfAEw1MOFks
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Anonymous Coward, 19 Sep 2013 @ 6:05am

Re: There's no need to defer to 'Legal Experts'
That's the way it is in dreamland. However, in the real world there are very bad people - some of which have found their way to positions of power and influence and they simply do not care. Nothing personal - it's just business.
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Anonymous Coward, 19 Sep 2013 @ 6:28am

Merely because state law does not explicity authorize the use of a classification program is not dispositive. Problematic perhaps? A good idea? Illegal? I depends. I say it depends because in many states public documents are presumptively discloseable under "Sunshine Laws", with only a very few exceptions being recognized. I do not know if there is a Sunshine Law in New York State applicable to it and its political subdivisions, or if perhaps there may be other laws that reasonably can be argued to proscribe what is being done by the NYPD. Unfortunately, those opposed to the practice quoted in the article do not identify any basis in law for their declarations about illegality.

Guess one will have to wait until the facts are better developed and the underlying basis for the arguments are identified. Even so, it does seem a bit tacky to keep documents outside the hands of the public except in only the most unusual and sensitive of situations.
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beech, 19 Sep 2013 @ 6:28am

awesome
This is the best news I've heard in awhile. Now all we need to do is file a FOIA for all documents marked "secret"by the NYPD to learn about all their dirty laundry. Sure, it may take a lawsuit to get the docs released, but it sure was nice of them to put everything interesting under the same heading!
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Anonymous Coward, 19 Sep 2013 @ 6:39am

Maybe the hint is on the bottom.

"Attorneys - Eyes Only Pursuant to January 12 2007 Order"

"Confidential and Subject To Protective Order (USDC SDNY)"

Maybe someone should be looking at what happened in the United States District Court - Southern District of New York on January 12, 2007. Could they somehow have gotten a court order protecting certain documents?
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Anonymous Coward, 19 Sep 2013 @ 6:49am

Re:
Making excuses ... one embarrassing moment after another.
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Anonymous Coward, 19 Sep 2013 @ 6:49am

Re:
Looks like I found what that protective order was about:

http://www.nyclu.org/files/rnc_ruling_documents_050407.pdf
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Anonymous Coward, 19 Sep 2013 @ 6:50am

Sorry officer, the contents of my cellphone is classified.
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Anonymous Coward, 19 Sep 2013 @ 7:04am

Re: Re:
From that document:

"On October 4, 2005, I approved the parties� stipulation concerning confidentiality, entitled �Protective Order #1.� The Protective Order provides that any party may designate discovery materials as �Confidential,� triggering specified restrictions on disclosure."

So the marking of these documents as confidential DID have a legal basis. However, as the link shows, the judge lifted the confidentiality in 2007.

So. Is the police department still treating these documents as "secret"? If so, how did you get a copy? If not, then here's a perfectly good explanation as to why at least THIS document was marked that way.
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Anonymous Coward, 19 Sep 2013 @ 7:18am

Re: Re: Re:
Except this document was from 2004, and if it is marked regarding the 2007 order, this document was retroactively classified _after_ the order was lifted.
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RyanNerd (profile), 19 Sep 2013 @ 7:33am

What happens in the NYPD...
Stays in the NYPD.
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Anonymous Coward, 19 Sep 2013 @ 8:11am

Re: Re: Re: Re:
Not if it was marked this way after January 12 2007 (when the documents were designated "eyes-only" by the judge) but before May 4 2007 (when the classification was lifted.) Obviously I don't know the exact history of the document embedded here; I don't know who get it from who at what date, and I don't know if the department is still trying to claim that it's secret or if that's just a relic.
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Jeremy Lyman (profile), 19 Sep 2013 @ 8:19am

Re:
"Want" and "Need" sometimes become indistinguishable when someone else is footing the bill.
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John Fenderson (profile), 19 Sep 2013 @ 9:02am

Re:
Civilian police forces should be specifically prohibited from possessing military hardware such as anti-aircraft weaponry.

Period.

Full stop.
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John Fenderson (profile), 19 Sep 2013 @ 9:43am

Re:
They're not in the majority. It just looks like it because they tend to be in power.
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Corwin (profile), 20 Sep 2013 @ 9:04am

Discrimination
Why only Mosques? That's religious discrimination. The wacky guys with the crosses are every bit as deluded as those who chant their fairy tales in Arab.
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nasch (profile), 20 Sep 2013 @ 1:18pm

Re:
Unfortunately, those opposed to the practice quoted in the article do not identify any basis in law for their declarations about illegality.

I didn't see anyone saying it's illegal to mark documents "Secret", only that it has no legal significance to do so. By contrast, the federal government has the authority to classify information as secret, and then there are legal penalties for disclosing it inappropriately. The NYPD has no such authority, so anyone who feels like it could send such documents to a reporter and there would be no legal repercussions (absent any violations of privacy laws or some such).
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nasch (profile), 20 Sep 2013 @ 1:19pm

Re: awesome
Sure, it may take a lawsuit to get the docs released

And ten years and $100,000...
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nasch (profile), 20 Sep 2013 @ 1:20pm

Re: Discrimination
The wacky guys with the crosses are every bit as deluded as those who chant their fairy tales in Arab.

That's Arabic. /pedantry
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