Challenge To NYPD's Use Of Sealed Records Gets Go-Ahead

By Kevin Penton | September 8, 2019, 8:02 PM EDT

A New York judge has certified a class of individuals who contend the New York City Police Department has unlawfully used information contained in their sealed arrest records when investigating other cases.

Justice Alexander M. Tisch of the New York Supreme Court for New York County determined Thursday that clients of Cleary Gottlieb Steen & Hamilton LLP and the nonprofit Bronx Defenders have demonstrated that the case involves a narrow legal question and at least tens of thousands of individuals. Dealing with the matter as a class action is the most fair and efficient method, the judge said in his order.

The judge rejected the NYPD's contention that certifying the class would be premature because limited discovery has occurred and the court would need to examine the individual circumstances of those with sealed arrest records. The city likely already has much of the information required, he said.

"Contrary to the city's contention, the issue in dispute, as stated, is quite narrow, with much of the underlying information no doubt coming from the city as to its policies and practices," the judge said. "Thus, the court rejects the city's arguments that individualized discovery would be required, rendering class certification onerous."

Attorneys initiated the case in April 2018, arguing on behalf of several individuals identified only by their initials that the department's practice has likely led to a vast database of information — including Social Security numbers, fingerprints, photographs and contact information for relatives — of an untold number of New Yorkers who were never found guilty of the charges filed against them.

The three named plaintiffs in the case contend the NYPD has used and disclosed information contained within their sealed arrest records as part of new investigations, according to their complaint.

Plaintiff R.C., for example, alleges he was charged with robbery after police developed a photo lineup using a picture from a dismissed arrest, even though the robbery occurred at a time when he was out of state, according to the complaint. He needed to appear in court 10 times to fight the charges and ultimately lost his job because of work absences, R.C. said.

"The writing is already on the wall: The NYPD needs to start draining its databases of sealed arrest information and revamping its surveillance machine so that people who have already faced the bar of justice and won are not forever treated as criminals," said Jenn Rolnick Borchetta, deputy director of the Bronx Defenders' impact litigation practice, in a statement.

Thursday's ruling should clear the way for discovery to proceed in the case, including for related databases kept by the NYPD, according to an announcement by the Bronx Defenders.

The NYPD declined to comment on the case through a spokeswoman on Friday.

Justice Tisch rejected the NYPD's motion to dismiss the case in April, finding that the plain language of amendments made in 1976 to the New York State Human Rights Law and the Criminal Procedure Law make it clear that information included in arrests that do not lead to criminal convictions of individuals must be sealed, and not used by officers as part of investigations into other matters.

"A review of the plain language, together with the legislative intent, purpose and judicial interpretation of the sealing renders it abundantly clear that defendants' interpretation of the statute is without merit," the judge wrote at the time.

--Editing by Aaron Pelc.

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