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

Tech Dirt – by 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 completelyundermine 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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