City Is Rebuffed on the Release of ’04 Records

Published: August 7, 2007

A federal judge yesterday rejected New York City’s efforts to prevent the release of nearly 2,000 pages of raw intelligence reports and other documents detailing the Police Department’s covert surveillance of protest groups and individual activists before the Republican National Convention in 2004.

In a 20-page ruling, Magistrate Judge James C. Francis IV ordered the disclosure of hundreds of field intelligence reports by undercover investigators who infiltrated and compiled dossiers on protest groups in a huge operation that the police said was needed to head off violence and disruptions at the convention.

But at the behest of the city and with the concurrence of civil liberties lawyers representing plaintiffs swept up in mass arrests during the convention, the judge agreed to the deletion of sensitive information in the documents to protect the identities of undercover officers and confidential informants and to safeguard police investigative methods and the privacy of individuals caught up in investigations.

The city had largely based its bid for nondisclosure on the need to protect those identities and methods, and argued that the public might misinterpret the documents or the news media sensationalize them. But the civil liberties lawyers insisted that the documents — even without the sensitive materials — were needed to show in court that the police had overstepped legal boundaries in arresting, detaining and fingerprinting hundreds of people instead of handing out summonses for minor offenses.

The order was the latest development in the long-running case, which posed thorny questions about the free speech rights of protesters and the means used by law enforcement officials to maintain public order.

It appeared that the plaintiffs, who had denounced the police for trampling on the civil liberties of protesters who were fingerprinted and detained at length for minor offenses, had largely won the day, while the city had achieved a more limited objective.

Christopher Dunn, the associate legal director of the New York Civil Liberties Union, which represents the lead defendants in a barrage of more than 80 lawsuits, said of the judge’s ruling: “He’s given us everything we asked for. He has redacted the names of undercover agents and the particulars of surveillance techniques. We agreed to that. But he has said the city cannot withhold the information it gathered in these operations.”

Peter Farrell, the city’s senior lawyer in the case, offered a narrower interpretation of the disclosure order. “Judge Francis held that the city properly invoked the law enforcement privilege in a document-by-document review,” he said in a statement released by the Law Department. “While he has ordered some limited information disclosed, he has also provided for restricted access.”

As for a possible appeal, Mr. Farrell said: “We are in the process of reviewing the information the judge has ordered produced to determine whether the disclosure will compromise the programs or personnel of the N.Y.P.D. Intelligence Division. Once we have completed that review, we’ll make a determination on appealing.”

The city and the Police Department have come under intense scrutiny over the surveillance tactics, in which for more than a year before the convention undercover officers traveled to cities across the country, and to Canada and Europe, to conduct covert observations of people who planned to attend. But beyond potential troublemakers, those placed under surveillance included street theater companies, church groups, antiwar activists, environmentalists, and people opposed to the death penalty, globalization and other government policies.

And as the convention unfolded, more than 1,800 people were arrested, mostly for minor violations, and many were herded into pens at a Hudson River pier and fingerprinted instead of being released on summonses or desk appearance tickets, which are more customary for charges that amount to little more than a traffic ticket.

As scores of federal lawsuits challenging the mass arrests on Aug. 31, 2004, were filed in Federal District Court in Manhattan, with plaintiffs claiming wrongful detentions of up to two days and other violations by the police to keep protesters off the streets, the outlines of the extensive covert surveillance operation began to emerge from court records.

In March, The New York Times disclosed details of the sweeping operation, including a sample of raw intelligence documents and summaries of observations from field agents and the police cyberintelligence unit. Some plaintiffs and their lawyers, seeking to bolster their cases, asked the court to disclose the documents. In May, Judge Francis allowed the disclosure of 600 pages of documents relating to security preparations before the convention.

But a second batch of documents, including pictures and reports by undercover agents detailing which protest groups were infiltrated and the results of the surveillance operations, remained in contention. The city argued that disclosure would reveal sources, methods and other information that might compromise current and future investigations, while the plaintiffs contended that the reports would disprove city claims that the protesters planned to engage in violence, and would show that mass arrests had been unnecessary.

In his ruling yesterday, Judge Francis acknowledged that some information in the documents needed to be protected. He himself edited out what he regarded as privileged law enforcement information in many “field intelligence reports” from agents covering confidential sources and techniques. And he did not order the release of documents in which the Republican convention was not mentioned.

But he rebuffed city arguments that general information gathered about an organization would necessarily jeopardize confidential police matters. “It is difficult to imagine how someone could determine the identity of an undercover officer simply from the fact that he or she was present at a meeting or protest attended by dozens, if not hundreds, of people,” the judge declared.

In addition to the field intelligence reports, two other categories of documents whose contents and even subject matter have never been publicly discussed — 84 documents that the city contended were privileged in their entirety and 177 that the city agreed to release with its own editing — were ordered disclosed in part by the judge.

The city, he said, did not explain “why the documents in the first category are privileged, nor does it explain why it is necessary to redact information from documents in the second category,” adding: “The court can only guess at why the city believed that they are subject to privilege.”

Parts of the documents, which could be released in 10 days unless the city appeals, are expected to be used in court by the plaintiffs, either as evidence in challenging the motives and conduct of the police in the arrests, fingerprinting and detention of protesters, or in formulating questions for cross-examining witnesses for the city, including David Cohen, the deputy police commissioner for intelligence.

Mr. Dunn, of the civil liberties union, said that Commissioner Cohen had been giving a deposition when the dispute over the documents arose, and the judge granted a city motion to postpone the deposition.

“We believe that these documents will disprove the N.Y.P.D.’s claim that demonstrators planned to engage in violence,” Mr. Dunn said. “We believe these documents will reveal not only the vast scope of the N.Y.P.D.’s political surveillance operation, but also that there was no need for the Police Department’s harsh treatment of protesters.”