Center on Privacy and Technology v. New York City Police Department

Amicus brief filed by the Reporters Committee for Freedom of the Press and 25 media organizations

Court: New York Supreme Court, Appellate Division, First Department

Date Filed: May 12, 2020

Update: On Aug. 27, 2020, the New York Appellate Division granted the Center on Privacy and Technology’s motion for leave to appeal to the New York Court of Appeals.

Background: In 2016, the Center on Privacy and Technology, a Georgetown University think tank, filed a records request under New York’s Freedom of Information Law seeking records related to the New York Police Department’s use of facial recognition technology. Nearly three years later, after court orders compelled NYPD to turn over records to CPT, NYPD officials said they had accidentally turned over records that they should not have disclosed.

A court order required CPT to return some of the records. While the order did not prevent CPT from reporting on the contents of the accidentally disclosed files, it prohibited CPT from mentioning the existence of those files in its reporting. In other words, the think tank could not refer to the NYPD documents as the source of the information that it published.

CPT appealed this part of the order to the Appellate Division, First Department of the New York Supreme Court, which affirmed the court order. Now, CPT is seeking leave to appeal to the New York Court of Appeals, a higher appellate court.

Our Position: The New York Appellate Division should grant CPT leave to appeal its order to the New York Court of Appeals.

• The order is an unconstitutional prior restraint on CPT’s speech that prohibits the think tank from publishing lawfully obtained information about a matter of public interest.
• There is no compelling government interest in concealing the source of the information in this case.
• The New York Supreme Court’s order, and the Appellate Division’s order affirming it, sets a concerning precedent that the Court of Appeals should review, as it could lead to future First Amendment violations, and will diminish the credibility and effectiveness of academics, journalists, and policymakers.
• The New York Supreme Court and Appellate Division were wrong to rely on Seattle Times Co. v. Rhinehart, a 1984 case in which the U.S. Supreme Court held that an order barring a newspaper from publishing information obtained during discovery in a civil lawsuit did not violate the First Amendment. Under Seattle Times, disclosures made in discovery in civil litigation are subject to a far lower presumption of public access than agency disclosures required by public records laws. As such, the Court should instead rely on Florida Star v. B.J.F., which ruled that media organizations cannot be punished for publishing information obtained lawfully from government records, even if the government released the information in error.

The media coalition was represented by the First Amendment Clinic at UCLA School of Law and attorneys at Kramer Levin Naftalis & Frankel, a New York law firm.

Quote: “This Court’s decision sets a dangerous precedent that threatens the First Amendment rights of journalists who obtain information using the Freedom of Information Law.”

Related: In the spring of 2019, a Juvenile Court judge in Cook County, Illinois, issued an order that banned ProPublica from publishing information it had lawfully obtained identifying minors and their foster parents in a welfare case. A 40-member media coalition, led by the Reporters Committee, argued in a letter that the judge’s order was an unconstitutional prior restraint. Two weeks later, the judge narrowed the order, requiring ProPublica to refrain only from publishing the names and photos of the children involved in the case.

Also in Cook County in early 2019, Better Government Association challenged a court order that barred it from publishing records about the drowning of a special needs student that the BGA obtained from the Chicago Public Schools through a lawsuit. The Reporters Committee filed a friend-of-the-court brief in support of BGA, arguing that the judge’s order was an unconstitutional prior restraint. The judge only vacated the order after the deceased student’s family gave BGA permission to release the document.

In February 2018, the Reporters Committee and the Nevada Press Association filed a friend-of-the-court brief in support of the Las Vegas Review-Journal and the Associated Press after a Nevada district court order prohibited the news organizations from publishing an anonymized autopsy record for a victim of the Las Vegas mass shooting. The Nevada Supreme Court later vacated the lower court’s order, ruling that it was an unconstitutional prior restraint.