Former NYPD Boss Ray Kelly's Emails 'Inadvertently' Wiped Despite Court Order To Preserve Them
from the press-'delete'-to-retire dept
No surprises here, although the contempt for government authorities that aren't the NYPD is a bit audacious.
Most of former NYPD Commissioner Raymond Kelly’s emails on his desktop computer were deleted at the end of his tenure despite an order they be preserved for a high-stakes class-action suit alleging a summons quota system within the department.The NYPD -- and its top officials -- have never been fans of transparency or accountability. The only shocking aspect is that the deletion was done in direct disobedience of a court order. The plan to secure Kelly's legacy by destroying his emails was likely in place long before his retirement. Back in 2013, it was made clear by Michael Bloomberg that there would be no effort made to archive the mayor's communications. Four government agencies were also on the "assured destruction" list, the NYPD being one of them.
By the time Kelly and Bloomberg left office, their emails were already slated for deletion. That makes the following statement both accurate and deceiving.
“The majority of former Commissioner Kelly’s locally stored emails were inadvertently deleted at the conclusion of his tenure,” city attorney Curt Beck wrote to Manhattan Federal Judge Robert Sweet."Inadvertently" is just another word for "automatically." Since no one was given the task of ensuring Kelly's emails wouldn't be deleted, the destruction went ahead as planned. But the wording suggests someone just hit the wrong key and nuked Kelly's emails.
And, as is far too often the case, those charged with preserving these communications were the last to know they were gone.
The city only recently learned of the mistakenly destroyed data, according to documents filed Wednesday.It might be more believable if the city's story didn't keep changing. First, it claimed the order to preserve the emails wasn't "disseminated widely," leading to staffers "mistakenly" deleting communications when Kelly left office. A few hours later, the city "clarified" its original statement by claiming the deletion only affected emails "stored locally," which vanished when Kelly was given a new computer in 2013 -- and his old one wiped for reuse.
In the latter explanation, the city claimed the only emails affected were those "three years or older" or "otherwise selected for archiving." (This auto-delete would seem to completely undermine the "archive" function, not to mention the definition of the word itself.) The city also said it could search the inboxes of other NYPD/city officials for copies of Kelly's emails. Neither statement is very reassuring, considering the preservation order took effect in 2010 when the lawsuit was filed and the city has yet to produce a single email.
The city says this "accidental" deletion is "not a big deal." (Yes, that's a direct quote.) The double standard here is astounding. If the NYPD was pursuing a case against a criminal defendant, the deletion of communications would be used against the person charged and could result in additional penalties. The federal government -- thanks to law meant to prevent corporations from destroying evidence -- goes after people for far less overt actions. Sarbanes-Oxley makes the deletion of anything a possibly criminal act -- including periodic maintenance like deleting cookies/browser history. The law basically forbids any conceivable criminal defendant from deleting anything from their devices and computers, as evidence must not only be preserved for ongoing investigations, but also for "foreseeable" investigations
Public entities have a duty to preserve communications responsive to public records requests and must implement clearly-stated deletion policies that err on the side of retention. The wiping of emails the moment a controversial official leaves office should be suspect, even without the existence of a preservation order demanding the retention of these documents. The court may pursue sanctions against the city, but that won't help the plaintiffs much -- not if evidence of ticket/arrest quotas (the central issue of the lawsuit) was contained in the "inadvertently" destroyed emails.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: deleted, email, evidence, nypd, ray kelly, spoliation
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
So, either they're lying about not having anything, or they had to go back and delete the backups too. Either way, it isn't good.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Hmmm
[ link to this | view in chronology ]
Re: Hmmm
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Coin Toss or Rochambeau?
Will the poor sap IT person following instructions be faulted by those pointing fingers, or will supervisors be severely reprimanded and given extra vacation, or will some manager wind up in jail and with a loss of job?
Nah...I bet the judge gets seriously verbose about someones failure to uphold court orders and then decides the case for the defendants because of the lack of evidence.
[ link to this | view in chronology ]
Re: Coin Toss or Rochambeau?
[ link to this | view in chronology ]
Re: Re: Coin Toss or Rochambeau?
“There was no overt act,” an NYPD official said.
Of course there wasn't.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
What is good for Hillary is good for others
[ link to this | view in chronology ]
Re: What is good for Hillary is good for others
[ link to this | view in chronology ]
Re: Re: What is good for Hillary is good for others
[ link to this | view in chronology ]
Re: Re: Re: What is good for Hillary is good for others
I don't give a shit about your political views and those who point out idiotic arguments are not typically the ones who blindly follow. Therefore your statement is also incorrect.
[ link to this | view in chronology ]
Per standard governmental criminal procedure...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
One would think his responsibility would have securing a backup of the files in question in his safe, and/or locking away the entire computer the minute the court ordered the emails to be secured.
[ link to this | view in chronology ]
Arbitrary Application of the Law is Tyranny
Ask yourself this dear citizen:
What type of sanctions would the government levy if you a loved one or friend were to have 'Inadvertently' Wiped your data (in this case emails) Despite Court Order To Preserve Them?
[ link to this | view in chronology ]
I'm absolutely SICK of seeing people in high power brazenly get away with shit that would see the common person put behind bars for the rest of their life.
I want to see government heads roll.
[ link to this | view in chronology ]
Re:
The only recourse when peaceful attempts at fixing a tyrannical government that uses brutality to put down their citizens rights is to revolt. or roll over and accept that boot up your ass and on your face.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Yeah right...
The way I see it, there is no way this could be accidental.
First of all, no email infrastructure would be one-way anymore. (and hasn't been for a long time) The silly excuse that emails were stored locally on a computer that was since formatted is so completely bad.
Are they telling me that if his computer got stolen or broke down, he would simply lose all his emails? Complete crap, I answer to that!
Second of all, the emails should be preserved for the next guy who holds that position. I don't believe they would just delete the mailbox that possibly contains important information and agreements. In business that is unheard of, and it is even more important when it is not just money on the line.
Thirdly as people mention earlier in the comments: Unless they have some sort of automatic system that looks in the backups and deletes the mailbox there as well, then it would be a annoying and daunting task to go into each backup (including tapes, which is good practice to use) and delete them seperately there. I don't buy it for a second.
Finally: Why isn't there a freaking law that forbids deleting something as important as emils? Are you telling me that as soon as somebody steps down he is exempt from corruption charges and misuse of power charges against him? For that reason alone they should be required to keep emails in backup for 10 years. They work FOR the public and FOR the people, so even though there are secrets we shouldn't know, they still answer to us, and as such they should not be allowed to delete anything. I still wait for the day when people who has the highest positions in our society are also kept to the highest standards.
[ link to this | view in chronology ]
Re: Yeah right... that will be the day
also know as when pigs fly (and throwing bad cops off buildings doesn't count, although could awarded partial credit depending on the pictures).
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I almost wiped some litigation e-mail today
Had I moved on to the next steps of removing the litigation hold, the system would have purged about a terabyte of e-mail, and if enough time had passed and it wasn't discovered that the data wasn't on the pst drives in time, it would have been lost forever.
This is just how I work, I check up on myself, generally assuming I have messed something up somewhere. If I didn't, great, I leave the customer confident that the job was done right, every so often, I catch a mistake. If I hadn't caught this one, it may have never been known, as this litigation hold data was deemed less likely to actually need to be produced, although it technically met the criteria for preservation.
[ link to this | view in chronology ]
Defense against copyright maximailists?
[ link to this | view in chronology ]
Re: Defense against copyright maximailists?
[ link to this | view in chronology ]
another solution
bet that would stop any future 'accidents'
oh, and last I checked, ignorance of the law was not a defense. So if they were deleted on your watch, YOU are responsible.
or you could just run for president...
[ link to this | view in chronology ]
"And what are you going to do about it?"
If you know the legal system won't hold you accountable, why not flaunt your indifference to any laughable 'orders' it hands out?
[ link to this | view in chronology ]
Re: "And what are you going to do about it?"
I'm willing to bet nothing will happen in the High Court. Now if it were the Low Court...
[ link to this | view in chronology ]
Re: Re: "And what are you going to do about it?"
High court though, the judge will just tisk tisk, chide them for destroying evidence, and shrug with a 'Well what can I do about it, they said it was accidental didn't they?'
[ link to this | view in chronology ]
Shocking
Somehow I was not shocked by that. Dismayed, but not shocked or even mildly surprised really.
[ link to this | view in chronology ]
To truly get rid of data you need to drill holes through the drives, smash them with sledge hammers, melt them in a blast furnace and then crush them down to the size of a pea. And even then experts can probably still recover about 90% of the data.
CSI wouldn't lie about something like that...
[ link to this | view in chronology ]
Re:
They can also decrypt encrypted files in about 30 seconds, right?
And why doesn't my spell checker know the word "decrypt"?
[ link to this | view in chronology ]
Re: Re:
Yes, and instantly "hack" into any system by simply typing furiously on the keyboard for about 20 seconds, even though they would have no way to know what the passwords are.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]