FDA Won't Say When Gilead Applied For Orphan Status On COVID-19 Treatment, Calling It 'Secret'

from the oh-come-on dept

Update: Facing tons of public pressure and ridicule, Gilead has agreed to give up the orphan designation.

I'm still pretty ticked off about the FDA's absolute bullshit decision to grant remdesivir "orphan drug" status for COVID-19 status. As I explained in the post yesterday, orphan drug status is supposed to be for rare diseases, in order to create an extra incentive for drug makers to find and deploy drugs to treat those diseases with a smaller than usual market. It would be ridiculous to argue that COVID-19 fits the bill. However, as the law in the US currently stands, the definition of a "rare" disease, is one that effects fewer than 200,000 people. The problem -- and the loophole that Gilead Sciences is exploiting here -- is that there's no concept of time and infection rate. The law was written with an idea that the rate of a disease would be relatively constant, so if you apply for orphan drug status at under 200k possible cases, it would remain that way.

Gilead, instead, is exploiting this loophole by basically rushing to the FDA before we'be even tested COVID-19 enough to know how widespread it is, and before we have enough real data or understanding of how wide it has spread. However, given what's happening around the country and the globe, to argue that this is a small market drug that needs extra protections is obviously ludicrous. Even worse, under the law, having the disease later impact more than 200k people is not a reason that the FDA can remove the status.

When a drug has been designated as an orphan drug because the prevalence of a disease or condition... is under 200,000 in the United States at the time of the designation, its designation will not be revoked on the ground that the prevalence of the disease or condition (or the target population) becomes more than 200,000 persons.

So, basically, rushing to the FDA works wonders. Meanwhile, Claire Cassedy from Knowledge Ecology International, wrote to the FDA to ask for clarification on just why Gilead got the orphan drug status, and was told (of course) that it was because of the "fewer than 200,000 people" criteria. She also asked exactly when Gilead applied for the designation and was told that was a "commercial secret."

What the actual fuck? How is that a commercial secret? We publish when patent, copyright and trademark applications are made. How could this possibly qualify as a secret?

Of course, the much bigger what the fuck is why would the FDA go along with this obvious abuse of process? At the very least, Congress needs to close this loophole so that the next big, fat, and happy drug maker can't abuse it for the next pandemic as well...

Filed Under: covid-19, fda, orphan drugs, remdesivir, secrecy, transparency
Companies: gilead sciences

FBI Says It Will Only Accept Snail Mail FOIA Requests Until Further Notice, Due To Coronavirus Concerns

from the and-it's-not-even-going-to-respond-to-those dept

With the Coronavirus grinding everything to a halt (except for stock market losses! [sobs in 401(k)]), it's understandable that public services would be affected as well. The unexpected shift to telecommuting means everything is going to slow down as public and private entities figure out how to still serve customers/citizens while still keeping the spread of the virus to a minimum.

But none of that explains this completely incomprehensible response from the FBI, which appears to be using the virus as a way to become even more tight-fisted with its stash of FOIA-able files. "FOIA terrorist" Jason Leopold reports the FBI is seeking to serve the public in the worst way possible during this national health crisis.

A message posted on the FBI's Freedom of Information Act website Tuesday says:

"Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail. We apologize for this inconvenience and appreciate your understanding."

Left unexplained by the agency is how sending out snail mail -- which could conceivably carry a bit of COVID with it -- is preferable to email requests, which can only infect others if they insist on opening sketchy attachments.

This is also against the law, unless the administration decides it's going to suspend FOIA law until the it's declared safe to act sane again. The regulations governing FOIA responses say all federal agencies must have the capability to "receive requests electronically" either via email or their FOIA portals. It appears the FBI has simply chosen to ignore its online portal and its capability to receive emailed requests.

Even if lower staffing levels might result in slower responses, the agency's virus response shouldn't be to switch off the online portal and direct everyone to another government service that itself might be negatively affected by the virus in the near future.

But there's more to it than this inexplicable explanation for shutting down the internet-friendly side of its FOIA services. Those bothering to send snail mail shouldn't expect responses, either.

Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, told BuzzFeed News that in a FOIA case she is litigating, an assistant US attorney filed court papers Tuesday saying the office that handles the FBI's FOIA requests is "closed at least until March 30, 2020 because of the current coronavirus outbreak."

This has been confirmed by other attorneys involved in FOIA litigation with the FBI. The regulation-dodging statement on the FBI's website doesn't inform requesters that the FBI won't be touching any requests for the rest of the month. The FBI -- through its lawyers -- insists this all very logical because FOIA response personnel can't work from home due to security issues. Even if so, encouraging people to climb into an FOIA time machine to take them back before the internet was a thing isn't helping anyone but an agency that would rather not answer FOIA requests at all.

Filed Under: coronavirus, covid-19, fbi, foia, pandemic, transparency

Federal Agencies Are Still Abusing Their Favorite, Super-Vague FOIA Exemption Thousands Of Times A Year

from the (b)ecause-we-can-can-can dept

The Freedom of Information Act was supposed to result in, you know, the freedom of information. Obviously, not everything the government produces paperwork-wise can end up in the public's hands, but far more should be turned over to the public than has been.

Using a proprietary blend of stonewalling and excessive fee demands, countless government agencies have managed to keep public documents away from the public. It takes a lawyer to win FOIA lawsuits, which may be why corporations are getting their hands on far more documents than American citizens.

Exemption b(5) is, by far, the federal government's favorite. It's vague enough it can cover just about anything.

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

Sprinkle a little intra-agency imagination over a pile of paperwork and responsive documents suddenly become unresponsive and are removed from life support as soon as feasibly possible. FOIA lawsuits are the metaphorical families in the waiting room, begging Dr. Info to reconsider pulling the plug.

Exemption b(5) has been used to withhold everything from State Department's "what a load of crap" Post-It note (attached to a Congressional proposal to designate Pakistan as a sponsor of international terrorism) to the CIA's files on the 1961 Bay of Pigs invasion.

The abuse of this exemption may have peaked in 2013, when federal agencies used it more than 81,000 times. But things haven't necessarily improved in the last seven years. In 2018, (b)5 was still cited more than 60,000 times. The (otherwise considerable) drop in deployment may be due to 2016 legislation, as the Project on Government Oversight explains:

One possible factor in the reduced use of Exemption 5 since its peak in 2013 may be reforms instituted by the FOIA Improvement Act of 2016. One reform barred the use of the exemption for records more than 25 years old…

That would remove the CIA's strategic blockade of its Bay of Pigs docs. But there's plenty of info far less dated that still receives the (b)5 "get out of transparency free" card. Multiple investigations of ICE detention centers highlighted the inconsistent application of the feds' go-to exemption. Documents handed to NPR [on the left in the image below] by ICE contained plenty of information. The docs handed to POGO, however, contained only redactions and the b(5) excuse.

Somehow the same information was both able to be released and able to be withheld under exemption b(5). As POGO points out, the b(5) boilerplate makes zero sense when applied to the text released to NPR. This exemption isn't supposed to deny the public access to common sense conclusions.

It’s difficult to understand how these statements—that inadequate mental health care leadership leads to poor care, and that solitary confinement is the “most important issue” at this particular detention center—can be properly withheld under Exemption 5. There is no attorney-client advice, and no deliberation on a pending policy decision.

If this is repairable, it will take an act of Congress, just like it did the last time. This exemption is like qualified immunity for cops: why not toss it up against the wall and see if it sticks? Since it usually takes litigation to reverse agency non-judgment calls, the house -- which spends other people's money to stick it to the people -- almost always wins.

Filed Under: b(5), foia, government, inter-agency communications, secrecy, transparency

CBP Employees Obtain New Accountability Shield With 'Security Agency' Designation

from the everyone's-pr dept

Our nation's border security agencies want to be national security agencies. ICE and CBP both made it clear they expected to be treated as Intelligence Community equals and given a seat at the grown-ups' surveillance table. They got their wish. Trump's "extreme vetting" wishes opened the door for the agencies' access to NSA collections late last year.

The CBP's addition to the long list of Intelligence Community agencies gives it another layer of opacity. As Ken Klippenstein reports for The Nation, being added to the OPM's list of exemptions will make it even more difficult to obtain information via FOIA requests.

On Friday, the Trump administration quietly designated the entire Customs and Border Protection (CBP) agency, which polices US borders, as a “Security Agency,” according to an internal memo obtained by The Nation.

This puts CBP on the same playing field as secretive agencies like the FBI, DEA, and ATF. While ostensibly only concerned with border protection, the CBP's reach has been extended by its access to NSA collections and its personnel more insulated from accountability by this designation.

The memo states: “I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CGP employee data.”

Every CBP employee is now shielded from public scrutiny, no matter how much "security" work they're actually involved in. The memo obtained by The Nation came from a CBP contractor who blew the whistle on this bullshit designation. According to the unnamed source, they came forward to inform the public about an "absurd" designation that gives CBP employees a new layer of opacity they haven't earned.

The memo says this new designation is a reaction to supposed "doxing" of CBP employees via a Twitter account that may have been run by an OPM employee. But it wasn't really "doxing." The information released was pulled from publicly-accessible OPM databases. If this is the case, this doesn't seem to justify unilaterally declaring CBP employees to be more equal than other federal employees not fortunate enough to work for one tasked with bringing President Trump's anti-immigration fantasies to life.

CBP employees aren't special. And they're only "security" personnel in the loosest sense of the word. Just because they're involved in border security doesn't mean any exposure of their personal info would result in decreased employee safety or harm intelligence gathering. For that matter, the CBP isn't really in the intelligence gathering business and it's not known for operating extensive investigations utilizing undercover personnel who could suffer from being "outed" by publicly-available info. This is just opacity creep -- one that spreads from agency to agency like black mold. And it will make holding the agency accountable for its actions even more difficult when the public isn't able to pinpoint who's behind the latest string of abuses.

Filed Under: accountability, cbp, foia, intelligence agency, law enforcement, transparency

Transparency Report Shows Ancestry.com Rejected A Warrant Demanding Access To Its DNA Database

from the PREMISES-TO-BE-SEARCHED:-the-whole-thing dept

Third-party DNA services have become one of law enforcement's new investigative tools. Companies like Ancestry.com and 23andMe have collected massive amounts of DNA data and personal info, and cops have used these databases to solve cold cases and identify suspects they may have overlooked during investigations.

As this use of private DNA databases has become more widespread, some services have tightened up their access. Law enforcement started pushing and it was finally time to start pushing back. In addition to creating fake profiles to upload DNA samples to match against databases, law enforcement officers have also obtained court orders demanding full access to these databases to peruse at will.

One company, FamilyTreeDNA, has welcomed this new interest from non-customers, allowing government agencies to treat its database as one of their own. Most other DNA companies have gone the other way, restricting access to personal info and DNA matches by requiring legitimate, narrowly-crafted court orders and warrants before turning over info to law enforcement.

Ancestry.com is one of the more restrictive companies. Its "Guide for Law Enforcement" makes it clear it will challenge any court order or warrant it believes is overly-broad. The wording may seem a bit antagonistic, but it's probably the only language law enforcement understands. Law enforcement prefers to communicate vaguely and exoneratively, which lowers its exposure to harmful things like the rights of others and personal accountability. So, if Ancestry's language is brusque, it's only because it's necessary.

Ancestry does not voluntarily cooperate with law enforcement. To provide our Users with the greatest protection under the law, we require all government agencies seeking access to Ancestry customers’ data to follow valid legal process and do not allow law enforcement to use Ancestry’s services to investigate crimes or to identify human remains.

Some unnamed law enforcement agency recently experienced this lack of cooperation firsthand, as Peter Aldhous reports for BuzzFeed.

Ancestry.com, the largest DNA testing company in the world, was served a search warrant to give police access to its database of some 16 million DNA profiles, but the company did not comply.

“Ancestry received one request seeking access to Ancestry’s DNA database through a search warrant,” the company revealed in its 2019 transparency report released last week. “Ancestry challenged the warrant on jurisdictional grounds and did not provide any customer data in response.”

There are no further details in the transparency report, but comments given to BuzzFeed by Ancestry suggest the warrant sought open-ended access to the company's database. That's definitely something companies shouldn't be offering to law enforcement agencies. The unnamed law enforcement agency will have to take its fishing line to a competitor more willing to abuse the trust of its customers.

Filed Under: dna, law enforcement, privacy, transparency, warrant
Companies: ancestry.com

Second California Court Tells State AG To Stop Screwing Around And Release Police Misconduct Records

from the wasting-taxpayer-dollars-for-fun-and-opacity dept

A California appeals court has just handed Attorney General Xavier Becerra a second defeat in his quest to keep police misconduct records out of the public's hands.

Becerra first stepped up to defend bad cops from transparency and accountability shortly after a new law went live, giving Californians access to police misconduct and use of force records for the first time ever. Becerra claimed (without legal support) the law was not retroactive, an assertion contradicted by the crafter of the bill.

No courts agreed with this contention, even when it was made by police unions and department public records reps. The law applies to all misconduct records, not just those created after the law's enactment. Some departments saw this coming and purged older records prior to enactment. Others complied quietly. A few sued to block enforcement of the law.

Xavier Becerra made the dubious legal assertion the state's Department of Justice didn't need to turn over records because it wasn't the original source. He made this assertion despite the DOJ being the agency that routinely investigates misconduct and use of force complaints, which means the DOJ should have plenty of responsive records on hand.

The First Amendment Coalition and public media outlet KQED sued after Becerra refused to turn over records. Becerra asked the appeals court to tell him he was right to refuse to comply with the law. The appeals court says that's not the way the law works. The state DOJ holds records on police misconduct and the public can directly approach the DOJ for these records, rather than filing requests with numerous different agencies. (via Courthouse News)

The ruling confirms the lower court's determination: if the DOJ has these records, the DOJ needs to turn them over. From the decision [PDF]:

In this case, California Attorney General Xavier Becerra and the California Department of Justice (collectively, the Department) have filed a petition for a writ of mandate seeking to overturn the trial court’s order in favor of First Amendment Coalition and KQED, Inc. (KQED) over two aspects of the Department’s disclosure obligations under section 832.7. We conclude, as a matter of statutory interpretation, that section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.

The court says the law's wording makes it clear any agency holding records is obligated to release them -- not just the agency where the records may have originated.

[T]he Department’s construction is at odds with the CPRA, which provides in no uncertain terms that, barring an applicable exemption, a member of the public has the right to inspect any nonexempt “public records,” defined as “any writing” containing information relating to the public’s business that is “retained by” a state or local agency.

Clear, unambiguous language in the law. Clear, unambiguous language from the court. And yet…

The Attorney General’s press office said in an email that the Justice Department is reviewing the decision.

Come on, man. Being willfully ignorant of the law is no excuse. Appealing this decision further just wastes time and the public's tax dollars. Turn over the records, you coward.

Filed Under: california, foia, police misconduct, transparency, xavier becerra

FISA Court Orders FBI To Start Cleaning Up Its Carter Page Surveillance Mess

from the fool-me-a-dozen-or-more-times,-here's-another-angry-court-order dept

The FBI's abuse of its surveillance powers in the Carter Page investigation -- uncovered by the Inspector General -- is now being addressed by the FISA court. The FISA court is often considered to be a rubber stamp for government applications -- only very rarely rejecting the government's national security advances.

Some of this is due to deference the government very definitely hasn't earned. But some of this is due to the FISA court flying blind. The government still keeps secrets from the nation's most secretive court and judges are forced to accept its assertions because they don't possess the information needed to push back against the government's claims.

The Inspector General's report highlighted more abuses by the FBI during its investigation of former Trump campaign advisor, Carter Page. The IG found the FBI had omitted info that likely would have seen its applications denied, most notably knowledge it had obtained from its sources that Carter Page most likely wasn't acting as an agent of a foreign power.

The first application made to the court in October 2016 was probably legitimate. The other two applications seeking to continue surveillance of Page weren't. Had the FBI been honest in its applications, the two extensions would likely have been rejected by the FISA court.

With this info in hand, the FISA court is moving forward with another attempt to keep the FBI from abusing its national security privileges. We'll see if it works. So far, nothing has permanently prevented any agency with access to the FISA court from abusing its surveillance powers.

The corrective actions began with a December 2019 order that demanded the FBI identify any other matters before the court that involved FBI lawyer Kevin Clinesmith. Clinesmith altered an email from another US government agency to hide the fact that Page was a government source for this agency. The FBI lawyer has since resigned and been referred to the DOJ for criminal charges.

The latest order [PDF] is another rarity for the FISA court, but sketchy times call for greater transparency. If the FBI doesn't want its dirty laundry aired publicly by the secret court, perhaps it shouldn't create so much of it. Very few orders have been released by the FISA court without a (regular) court battle, so the FISA court's proactiveness is still very much an anomaly.

The order makes more demands of the FBI. The court wants to know how the agency is going to make things right. In reference to the Carter Page surveillance applications, the court demands the FBI to explain how it's going to "sequester" everything the FBI collected on/from Carter Page using its bogus applications.

It also wants a detailed description of what the FBI/DOJ is doing to restrict access to unminimized US person info gathered during the Carter Page investigation, as well any restrictions it has placed on access/dissemination of info on Page it never should have collected, much less distributed in the first place.

The Intelligence Community's string of surveillance abuses remains unbroken. Because the FISA court is only barely adversarial, the government is able to run its bullshit pretty much uncontested. Once again, it took outside help -- namely, the Inspector General's office -- to show the court what the FBI was really doing. The only question is how often the court is willing to get burnt by its untrustworthy patrons.

Filed Under: carter page, doj, fbi, fisa, fisa court, fisc, inspector general, transparency

Judge Says Chicago PD Must Release Nearly 50 Years Of Misconduct Files Before The End Of This Year

from the maybe-if-you-had-better-cops,-you'd-have-fewer-burdensome-documents dept

The Chicago Police Department is one of the worst in the nation. There's simply no denying this.

The Chicago PD ran its own black site for years, subjecting to arrestees to interrogations without access to legal counsel or notification of their families. Citizens effectively disappeared until the Chicago PD felt they had something worth booking them for. Only then would the paper trail begin and arrestees given access to their rights.

Police officers spent years screwing with recording equipment to ensure anything they didn't want recorded wasn't recorded. This resulted in only a couple of silent films being produced during the controversial shooting of Laquan McDonald. The surviving footage -- the stuff that didn't disappear because of a supposed "disk error" -- contradicted the official narrative, even without the mysteriously-missing audio.

There's more. Documents obtained through records requests shows thousands of misconduct investigations but very few punishments. The department used asset forfeiture funds to buy Stingray devices so it could bypass city government scrutiny of its surveillance tech purchases. Its gang database is a travesty even by gang database standards, filled with inaccuracies, sloppy paperwork, and a wholehearted lack of concern about the collateral damage it causes. And since it's so great at handling present crime, the PD has decided to take on future crime with its predictive policing program -- one that will allow cops to more proactively violate rights.

In the near future, we'll get to learn even more details about the department's awfulness. A FOIA lawsuit filed by a former inmate has resulted in a win for the general public.

In 2015, six years after his release, [Charles] Green filed a FOIA request with the city asking for copies of any and all closed complaint register files from 1967 to 2015. The request was made, Green’s attorney said, “in order to help him discover evidence of his innocence and to preserve and disseminate evidence of innocence to others wrongfully convicted.”

Judge Alison Conlon ordered the CPD to produce all files to Green by the end of 2020, noting that the CPD had “willfully and intentionally failed to comply” with the Illinois Freedom of Information Act.

Fifty years of complaints should be pretty enlightening. The document dump will be routed through the Invisible Institute, which has already done some great things with previous FOIA releases from law enforcement agencies.

The rollout probably won't begin immediately, but the Chicago PD -- which has only turned over about 100 files so far -- has until the end of the year to fork over the remaining 174,900 responsive documents it says it has on hand. Right now, it seems to be focusing its energy on appealing the decision and complaining about how producing misconduct documents will somehow be unfair to the general public.

The City of Chicago is committed to the highest level of transparency and responds to tens of thousands of Freedom of Information Act requests every year, including requests regarding allegations against Chicago Police officers. This request is different, however, as it seeks every Complaint Register file created since 1967 – approximately 175,000 files, each of which contain dozens to hundreds of pages… Complying with this request would present numerous challenges, including millions of dollars in costs and expended public resources.

I think the city's taxpayers will be fine with their money being used this way. Seems like exactly the sort of thing the public would benefit from -- a welcome change from the terrible policing they've been funding for years.

Filed Under: chicago police, foia, misconduct files, transparency

The Afghanistan Papers v. The Pentagon Papers: How A Whistleblower Worked Much Better Than Endless FOIA Litigation

from the people-are-dying dept

On Monday morning, the Washington Post released The Afghanistan Papers, an incredible (though, tragically, not surprising) collection of unpublished notes and interview transcripts revealing that the past three administrations -- Trump, Obama, and Bush -- all lied consistently and repeatedly about how bad things were going in Afghanistan, pretending that various actions were succeeding, while the reality was they knew it was an unwinnable war.

“We were devoid of a fundamental understanding of Afghanistan — we didn’t know what we were doing,” Douglas Lute, a three-star Army general who served as the White House’s Afghan war czar during the Bush and Obama administrations, told government interviewers in 2015. He added: “What are we trying to do here? We didn’t have the foggiest notion of what we were undertaking.”

“If the American people knew the magnitude of this dysfunction . . . 2,400 lives lost,” Lute added, blaming the deaths of U.S. military personnel on bureaucratic breakdowns among Congress, the Pentagon and the State Department. “Who will say this was in vain?”

And, as part of that, there was the concerted effort to hide this reality from the American public:

Several of those interviewed described explicit and sustained efforts by the U.S. government to deliberately mislead the public. They said it was common at military headquarters in Kabul — and at the White House — to distort statistics to make it appear the United States was winning the war when that was not the case.

“Every data point was altered to present the best picture possible,” Bob Crowley, an Army colonel who served as a senior counterinsurgency adviser to U.S. military commanders in 2013 and 2014, told government interviewers. “Surveys, for instance, were totally unreliable but reinforced that everything we were doing was right and we became a self-licking ice cream cone.”

John Sopko, the head of the federal agency that conducted the interviews, acknowledged to The Post that the documents show “the American people have constantly been lied to.”

For fairly obvious reasons, this release is being compared to the Pentagon Papers, a similar trove of documents that revealed how officials knew the Vietnam war was a lost cause and deliberately misled the American public about it for years.

There is one stark contrast between the two, however: how they came out. The Pentagon Papers came out because whistleblower Daniel Ellsberg leaked them to the press (for which President Nixon then tried to destroy his life in a bunch of different ways). The Afghanistan Papers, on the other hand, are coming out because of a years long FOIA battle by the Washington Post to get these documents released, against the wishes of the US government (who still was able to black out a bunch of information):

For all the talk about how whistleblowers and leakers should "use the proper channels," every time we see the "proper channels" in action, they seem to only open up opportunities for the government to delay, hide things, and continue whatever destructive (but embarrassing) policy they have in place. There is a place for whistleblowers to call out this kind of misconduct, and as Ellsberg himself has been saying for years, the growing attacks (by each administration) against whistleblowers and leakers has much more to do with government embarrassment, rather than any legitimate attempt to "protect national security."

Filed Under: afghanistan papers, daniel ellsberg, dod, doj, foia, forever war, leaks, pentagon papers, transparency, whistleblowing

NYPD Finally Releases A Body Camera Policy That Gives The Department Plenty Of Ways To Withhold Footage

from the transparency-pantomime dept

The NYPD has finally finalized its body-worn camera footage release policy. It's not much better than its initial public offering, which sought public input and then ignored every bit of the public's input to craft an officer-friendly deployment policy that left the act of recording to officer discretion.

Even the vague promise of eventually releasing BWC footage to the public was too much for the Patrolmen's Benevolent Association to bear. The NYC PBA sued to prevent the release of body camera footage to the public. This lawsuit was pursued as PBA President Pat Lynch made claims about officers' resistance to body-worn cameras that were contradicted by NYPD officers' statements.

Something the former mayor thought would be a "gotcha" tool to persecute otherwise fine officers has actually had zero effect on officer accountability or NYPD transparency to this point. It's not going to get any better either. The official policy [PDF] released by the NYPD still gives the public the shaft.

The editorial board for the New York Daily News sums it up nicely:

[V]ideo from the cameras cops wear — which, after all, the public pay for — should be presumed subject to release, with narrow exceptions clearly articulated by NYPD brass.

To the contrary, [Police Commissioner Jimmy] O’Neill’s memo says “the Department will decide when to publicly release BWC (body-worn camera) footage of a critical incident within 30 calendar days.” Just a decision within a month?

That's all the NYPD is promising: a "decision" within 30 days. It's not promising release within 30 days. It's just promising to think about it in a somewhat timely manner. That's the best New York residents are going to get from their Finest.

The NYPD also has plenty of options allowing it to decide -- within 30 days -- that it won't be releasing anything at all. Exceptions abound.

Any public release of BWC footage may be delayed, redacted, or in some cases, the Department may forego public release, in order to:

a. Comply with federal, state, or local law governing disclosure of records or existing Department procedures,
b. Protect confidential sources and witnesses,
c. Protect a person’s right to a fair trial,
d. Protect the identity of victims of sex crimes, domestic violence and juveniles,
e. Protect the privacy, life or safety of any person, and/or
f. Avoid undue trauma due to explicit or graphic content.

This all may sound reasonable and thoughtful, but in the context of this policy, it gives the NYPD multiple ways to withhold footage that doesn't show its officers in the best light. This policy covers release of recordings containing the use of deadly or excessive force and other incidents the Police Commissioner feels may "address vast public attention."

Footage that is exonerative will be cleared for release. Footage that isn't will be withheld. The excuses are built in.

Consider the death of Eric Garner. Officer Daniel Pantaleo deployed an against-policy chokehold and killed Garner. If body cam footage had been captured, this policy would have exempted it from release. Officer Pantaleo was criminally charged. "Protecting the right to a fair trial" would be invoked. Possibly the "undue trauma" exception as well.

If an officer rapes someone, beats a domestic partner on camera (there is precedent!), or violates the right of a juvenile, this footage could be withheld under the "protect the victims" exception, even though it's a cop committing the crime. If this seems like an impossibility, let's not forget officers invoking victims' rights laws to keep the press from publishing their names while discussing their lawsuits and/or prosecutions. Sure, the public will call bullshit, but the NYPD still has control of the recordings.

The exemption for federal law is another dodge. There are no federal agencies utilizing body cameras. In fact, until recently, partnering with a federal agency meant turning off body cameras or leaving them back at the station. Anything involving federal officers will likely be deemed unreleasable, no matter how high the level of public interest.

This isn't even up to the level of "will this do?" This is the NYPD giving residents what the NYPD wants while pretending it cares about transparency or accountability.

Filed Under: body cameras, nypd, transparency, withholding footage