Examining Police Transparency in the Digital Age

By Christian Nolan

Body Cams Panel

Police, the public and the media all agree that greater access and transparency is beneficial to all. But according to lawyers representing both the media and law enforcement, there is still a long way to go.

Saul Shapiro, a partner at Patterson Belknap Webb & Tyler where he chairs the firm’s litigation department, said despite the enormous publicity and stated goals of transparency regarding the NYPD’s use of body cams, the public is seeing far less of the footage than expected.

Shapiro, who has represented NY1 in ongoing litigation against the NYPD over the release of body cam footage, said the NYPD discloses what “looks helpful” to the police department, who then put forth “every exception under the sun” for why they cannot release requested footage, and then the two sides engage in costly litigation.

Shapiro’s comments were part of a fascinating discussion, “From Body Cam Footage to Sealed Court Records: Rethinking Access Law in a Digital Age,” presented Monday, Jan. 27 at Annual Meeting by the New York State Bar Association’s Task Force on Free Expression in the Digital Age.

The roundtable panel was moderated by Lynn Oberlander, senior vice president and associate general counsel at Univision. Other panelists were recently appointed New York County Criminal Court Judge Paul McDonnell; Ernest Hart, the deputy commissioner of legal matters with the New York Police Department; Rachel Strom, partner at Davis Wright Tremaine; and Al-Amyn Sumar, an associate at Ballard Spahr who previously worked as a First Amendment fellow at The New York Times.

Hart, a former state Supreme Court judge, sees it differently than Shapiro. He oversees various transparency issues, including those arising from body cam footage and the NYPD’s efforts to repeal state Civil Rights Law 50A, which protect police officers’ personnel files from the public.

“It’s definitely challenging to work on these transparency issues,” Hart said.

Hart claims the department receives over 25,000 Freedom of Information requests a year and released body cam footage in 6,000 of those cases. The department freely uploads thousands of other police body camera videos every week. If ten police officers arrive to the scene of an incident, that’s ten officers’ body cam footage that needs to be reviewed and uploaded.

In terms of 50A, Hart said unsubstantiated allegations should not leave an officer subject to “ridicule.”

“We’re making a strong effort to be a bit more accommodating,” said Hart. “I certainly do not have a problem with the press trying to get everything they can, but they have to understand that sometimes we have to push back a bit. They don’t always win. We don’t always win.”

Oberlander was quick to defend the public’s right to access in response to Hart. She likened unsubstantiated claims to what goes on the internet all the time, such as with Yelp reviews, allowing the public to make up their own mind about a matter.

Oberlander said if one police officer has four times as many unsubstantiated complaints as his or her colleagues “maybe there’s something to look at there.”

The task force, which is chaired by David McCraw, deputy general counsel for The New York Times, and Cynthia Arato, partner at Shapiro Arato Bach, is looking at possible reforms in the state Freedom of Information Law and the legal rules that determine the rights of journalists and other citizens to get access to court records.

This event was one in a continuing series of forums that the task force has hosted as part of a project investigating the crisis in local journalism and what the law and lawyers can do to help assure that citizens have access to the vital information they need.

Click here for additional information about the task force, including video of prior panel discussions.

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