Former NYPD Boss Ray Kelly's Emails 'Inadvertently' Wiped Despite Court Order To Preserve Them

from the press-'delete'-to-retire dept

Mon, Jan 4th 2016 11:39am — Tim Cushing

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.

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Filed Under: deleted, email, evidence, nypd, ray kelly, spoliation

36 Comments

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AnonCow, 4 Jan 2016 @ 11:50am

It would be sadly hilarious if these quotes were used by a defense attorney in a criminal trial where the defendant deleted emails to hide criminal activity and the defendant was subsequently acquitted.
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Lord_Unseen (profile), 4 Jan 2016 @ 11:54am

There's no way an agency with the budget of NYPD doesn't have some kind of backup strategy. His mailbox would've been backed up for quite some time.

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.
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JoeCool (profile), 4 Jan 2016 @ 11:56am

Hmmm
Maybe their banks need to "accidentally" delete their account balances. Maybe then they'd learn something.
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Anonymous Coward, 4 Jan 2016 @ 11:57am

"Wiped," like with a cloth?
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Anonymous Coward, 4 Jan 2016 @ 11:57am

Re: Hmmm
Like, with a rag or something?
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Anonymous Anonymous Coward, 4 Jan 2016 @ 12:18pm

Coin Toss or Rochambeau?
Is there anyone who thinks that when the court that ordered the preservation finds out about the failure to preserve that harsh consequences will be handed out?

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.
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Berenerd (profile), 4 Jan 2016 @ 12:18pm

When I worked for a state agency, we had to store Server email backups to the state archives on a daily basis. All email was stored off site and could not be destroyed for 50 years. (they edited the hard copy rules for all business transactions to cover email). I am surprised New York does not have the same requirements.
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Anonymous Coward, 4 Jan 2016 @ 12:23pm

What is good for Hillary is good for others
Who can blame him, Hillary can get away with running the State department from personal email, wiping it and now running for President. Why can't a lowly police chief do it? This is why no official, regardless of party should be allowed to get away with this. But the sheeple will vote for Hillary anyway.
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Anonymous Coward, 4 Jan 2016 @ 12:24pm

Re: Coin Toss or Rochambeau?
Nah...I bet the judge gets seriously verbose…
From the NY Daily News article:
A Law Department spokesman pointed to the city’s argument that sanctions would require evidence that emails were destroyed intentionally.

“There was no overt act,” an NYPD official said.
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Anonymous Coward, 4 Jan 2016 @ 12:25pm

Per standard governmental criminal procedure...
Treat absence of the e-mails as a presumed admission that they would have helped the opposing party. Unless the city can produce a paper trail showing that Kelly was not involved in the conduct alleged, treat the deletion of e-mails as acknowledgement that he was involved.
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tom (profile), 4 Jan 2016 @ 12:25pm

Wonder if anyone has bothered to contact the NYPD IT dept? I bet they have full backups going back years. If they don't, they either need to produce signed dated orders stating that IT is NOT to make backups or they need to be fired for gross incompetence.
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Peter (profile), 4 Jan 2016 @ 12:49pm

Is there any particular reason Curt Beck is not in prison for obstruction of justice? As city attorney in charge of this case, it would have been his responsibility to ensure the appropriate steps are taken to prevent emails from being deleted.
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.
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Personanongrata, 4 Jan 2016 @ 1:00pm

Arbitrary Application of the Law is Tyranny
Former NYPD Boss Ray Kelly's Emails 'Inadvertently' Wiped Despite Court Order To Preserve Them

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?
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Anonymous Coward, 4 Jan 2016 @ 1:57pm

Re: What is good for Hillary is good for others
Yeah, 'cause that had never been done before hillary did it.
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Anonymous Coward, 4 Jan 2016 @ 1:57pm

We need people in office who will be tough on GOVERNMENT crime.
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.
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Anonymous Coward, 4 Jan 2016 @ 2:07pm

Yeah right...
I work in IT, though I have never worked with state secrets or anything like that so there might be room for error.

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.
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Anonymous Coward, 4 Jan 2016 @ 2:59pm

Re: Yeah right... that will be the day
after the porcine aeronautical movement takes place

also know as when pigs fly (and throwing bad cops off buildings doesn't count, although could awarded partial credit depending on the pictures).
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Anonymous Coward, 4 Jan 2016 @ 3:35pm

Re: Re: What is good for Hillary is good for others
And the sheeple speak.
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Anonymous Coward, 4 Jan 2016 @ 6:42pm

So the mob are running the NYPD or are they just competing with them now
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Anonymous Coward, 4 Jan 2016 @ 6:49pm

Re:
The revolution will cause that to happen. That's a when not an if. People have tried to peacefully work within the system to get rid of the corruption. In turn they have been beaten, brutalized, tortured, illegaly imprisoned and murdered.

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.
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Anonymous Coward, 4 Jan 2016 @ 6:49pm

I almost wiped some litigation e-mail today
I don't know how almost it was, but I was asked to come in and do some exports on a local Microsoft exchange system so they could preserve some data and migrate less to Office 365 (I question the necessity, but it is what the customer wanted). I ran a few simple commands to do this which ran over the long weekend. I'm glad I checked my work because while I originally intended to export both the primary mailboxes and the archives, I inadvertently exported the primary mailboxes twice, only naming the second copy .archive.pst. When I took a look at the data I thought it was peculiar that both the .pst and .archive.pst files were almost the same size.

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.
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Atkray (profile), 4 Jan 2016 @ 8:11pm

Defense against copyright maximailists?
So if the mafiaa's come calling claiming you downloaded some file they lay claim to, apparently wiping your hard drive is now an acceptable response.
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dr evil, 4 Jan 2016 @ 9:14pm

another solution
hold everyone involved on contempt charges, and place in jail until the emails are magically found.

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...
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That One Guy (profile), 4 Jan 2016 @ 10:09pm

Re: Defense against copyright maximailists?
Only if you have an official badge of some sort or the right 'friends'. Doesn't work without those.
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That One Guy (profile), 4 Jan 2016 @ 10:38pm

"And what are you going to do about it?"
I'd say this is pretty clear evidence of just how in contempt the NYPD holds the court system. They're willing to blatantly destroy evidence, and use the flimsiest excuses, because they know that the courts won't do a thing 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?
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Blackfiredragon13 (profile), 4 Jan 2016 @ 10:39pm

Re:
OR they're completely and utterly incompetent.
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Ninja (profile), 5 Jan 2016 @ 3:57am

Re: "And what are you going to do about it?"
That. Regardless if it was accidental, inadvertent or whatever it is a court order. So at least those in charge of the infra-structure and the accounts should be punished for directly disobeying a court order.

I'm willing to bet nothing will happen in the High Court. Now if it were the Low Court...
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That One Guy (profile), 5 Jan 2016 @ 5:18am

Re: Re: "And what are you going to do about it?"
Low court those responsible would be facing down contempt of court, destruction of evidence, and probably any other charges the judge could think of.

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?'
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Anonymous Coward, 5 Jan 2016 @ 5:19am

Re: Re: Re: What is good for Hillary is good for others
Nice, get called names for pointing out logical flaws.

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.
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Anonymous Coward, 5 Jan 2016 @ 5:21am

Re:
Yeah, like it is only those in government that think they are above the law.
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nasch (profile), 5 Jan 2016 @ 10:14am

Shocking
The only shocking aspect is that the deletion was done in direct disobedience of a court order.

Somehow I was not shocked by that. Dismayed, but not shocked or even mildly surprised really.
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Rekrul, 5 Jan 2016 @ 11:49am

What's the problem? Everyone knows that it's 100% impossible to erase information from a hard drive. Just undelete the files! Any pimple-faced hacker with half a brain can recovery every single scrap of data that's ever been saved to a hard drive since the day it left the factory!

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...
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nasch (profile), 5 Jan 2016 @ 12:03pm

Re:
CSI wouldn't lie about something like that...

They can also decrypt encrypted files in about 30 seconds, right?

And why doesn't my spell checker know the word "decrypt"?
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Rekrul, 6 Jan 2016 @ 4:17pm

Re: Re:
They can also decrypt encrypted files in about 30 seconds, right?

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.
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Philly Bob, 6 Jan 2016 @ 5:20pm

Re: Re: Coin Toss or Rochambeau?
A Law Department spokesman pointed to the city’s argument that sanctions would require evidence that emails were destroyed intentionally.

“There was no overt act,” an NYPD official said.

Of course there wasn't.
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Anonymous Coward, 6 Jan 2016 @ 5:51pm

Re: Re: Re:
zoom - enhance - rotate
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