ITHACA, N.Y. — The Ithaca Police Department should not be forced to release major portions of its policy for using tasers or its policy for use of lethal force, a local judge has ruled.
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Revealing the policies would “present a significant likelihood” that criminals could use the officers’ techniques to harm either police or the public, Judge Robert Mulvey said in his decision.
The judge’s order stems from a lawsuit filed by Karseen Atkinson, who is serving prison time in Cayuga County on drug charges, in 2014.
Atkinson, of Elmira, was tasered twice by Ithaca police in April 2011 and charged with cocaine possession. He was later convicted in Tompkins County Court of two counts of criminal possession of a controlled substance in the third degree, according to court records.
Atkinson, who is representing himself from prison, filed a Freedom of Information Law request under New York state’s Open Records Law to force the Ithaca Police Department to release several of its policies.
When that request and an appeal to Mayor Svante Myrick were both denied, Atkinson sued the City of Ithaca in civil court to demand the policies’ release.
The ruling in the lawsuit came down late last month.
Judge Mulvey initially dealt the city a partial setback, finding that the city wasn’t allowed to simply reject the request in its entirety, as it had first tried to do.
In response, the city submitted redacted portions of the policy to Judge Mulvey for review.
Mulvey approved the redactions, essentially agreeing with the city that releasing the policies could hurt both officers and the public, city attorney Ari Lavine said in a statement to the Ithaca Voice on Friday.
Civil liberties group criticizes Ithaca’s stance
The New York Civil Liberties Union agreed to review the lawsuit for the Ithaca Voice this week.
In a statement, an NYCLU official said that Ithaca should not try to keep its policies and procedures confidential.
“The city’s litigation position that it could withhold policies and procedures under FOIL was completely inconsistent with the law and with principles of transparency and government accountability,” said NYCLU Senior Staff Attorney Corey Stoughton in a statement.
(The NYCLU is the New York affiliate of the well-known American Civil Liberties Union, a national non-profit.)
Still, other independent experts said the city’s decision may have been justified. At the center of the issue is when public officials can refuse to release a policy under New York’s Freedom of Information Law.
There are certain legitimate exceptions. For instance, government agencies are allowed to withhold disclosure if releasing information “could endanger the life or safety of any person,” said Robert Freeman, executive director of the New York Committee on Open Government and the original author of parts of the state’s FOIL law.
Still, Freeman noted that it’s very difficult to know whether there’s a legitimate basis to keep the policy confidential without knowing what’s actually in it.
“I don’t know what the manual looks like, and neither do you,” Freeman said in an interview with the Ithaca Voice this week.
Generally speaking, Freeman said, “I’m guessing disclosure would have no impact on safety … but there could be other elements that could enable the bad guys to take evasive action or something like that.”
Ithaca police, city stress officer safety over disclosure
The ability of suspects to use evasive techniques was precisely the argument the Ithaca police made in their initial effort to completely reject Atkinson’s FOIL request.
“It is my belief that public disclosure of policies reflecting how an officer responds to escalating tensions could serve to heighten the danger that officers face,” Ithaca police Sgt. Melissa Harmon said in a March 3 memo.
Harmon added that the release of the documents would “hamper the effectiveness of IPD’s policies and procedures intended to minimize use of force.”
Harmon also noted that the IPD recently revised its use of force guidelines and was in the process of revising its taser policies.
“If an outside party were to know the exact details of how an IPD officer is trained to think through these tense situations,” Harmon said, “the opposing party could preempt an officer’s actions, evade arrest, or put an officer or others in danger before the responding officer even had the chance to consider the requisite response.”
Prisoner, representing self, responds
In documents apparently written from prison, Karseen Atkinson argued that the IPD’s FOIL denial represented a violation of the “institutional integrity of the judicial system.”
“With all due respect, no shadowy rhetoric can obscure the facts,” Atkinson said.
“If the justice system is to have any usefulness, it must be respected and believed, the necessary confidence cannot be preserved when judges are duped in charades composed of lies and deceptions fabricated by government officials.”
Atkinson was requesting more than just the taser policy — he also sought records of 911 tapes, which were rejected because they weren’t held by the city, as well as “Policy GO-3001 – Subject Control – policy and procedures on the use of lethal force and less-lethal control.”
Below is the list of policies which were requested by Atkinson, rejected by the city and then released to Atkinson with substantial redactions:
In addition, Atkinson makes a few key points in his lawsuit against the city — many of which echo the points made by the N.Y. civil liberties’ union.
Among them are:
1 — That greater attention should be applied to “all use of force issues,” like shootings, to push for greater police accountability and training — and that this would be helped by greater disclosure.
2 — Tasers have significant “potential for injury” and, as such, can be used inappropriately. That’s a reason for releasing the policy about their use, Atkinson suggests.
3 — Exemptions to FOIL law — the ability for government to keep records private — are meant to be “narrowly interpreted so that the public is granted maximum access to the records of government,” Atkinson writes.
“When determining whether requested documents should be released, the need or purpose for which they are sought is irrelevant,” he notes.
4 — Atkinson argues that the city of Ithaca never successfully showed why, exactly, disclosure of the documents would at all represent the endangerment of the public or or officers.
5 — Atkinson strongly criticizes Ithaca for failing to uphold what he calls are fundamental obligations of transparency.
“The City of Ithaca’s-decision making is disturbing, and being that the nation screams (for) transparency, it’s no time to cite provisions to the laymen who appear ignorant of the law,” he writes.
Read the judge’s order in full here: