Unsealed: Class action lawsuit seeks sanctions against city, NYPD for publicizing, leaking sealed arrest records

When an arrest record is sealed in New York state — there is no current process of expungement outside of marijuana offenses in New York — there is a limit to the number of eyes who can see that record without the person’s permission or a court order.

Over the summer, 10 New Yorkers who had their arrest or conviction information sealed by the state said that privileged and identifiable information was not only chronicled in a report by the city and the NYPD but also disseminated to media outlets for publication, a violation of a four-decades-old sealed records statue and September 2021 court order.

A class action lawsuit brought forth by those 10 individuals and the Bronx Defenders is asking a Manhattan Supreme Court judge to sanction the city and the NYPD for roughly $6,000 worth of fines and for a court order to prevent the city or police officials from publicizing information from sealed arrest records to media outlets.

“These things — privacy and civil rights — are not at odds, despite the city thinking that they are in conflict,” Niji Jain, an attorney for the Bronx Defenders told the Bronx Times. “A sealed record should not be used against someone and this information from that report, and about these 10 (individuals) was publicized and that information has been used to then smear and shame them.”

Who can get records sealed?

The statutes require automatic sealing for cases that resolve in someone’s favor, ie, not leading to a conviction.

Who can access them?

The individual, and those granted that person’s permission to ask for your records.

An employer at a job that involves carrying of a firearm.

A parole officer if you are arrested while on parole or probation.

A prosecutor seeking full dismissal of the charges on a marijuana charge.

A law enforcement agency via a court order.

The Bronx Defenders told the Bronx Times that they stepped in to prevent a “publicity stunt” at an Aug. 3 press conference by Mayor Eric Adams, who intended to leak the names compiled in the report publicly — a violation of the state’s sealed records statutes prohibiting all access to sealed records unless the specific use falls within the guidelines.

“Trust me, I want to. You know, sometimes I don’t know why we hire lawyers, you know,” Adams, said at the August press conference. “They say we can’t show the name and faces, so I have to abide by the rules. But people in the public need to see the names and faces of these individuals who are repeatedly creat[ing] violence in our community, but I’m restricted by rules of my counsels.”

The NYPD has not responded to numerous requests for comment from the Bronx Times.

“We have opposed the motion filed by (plaintiffs) and have argued that we did not violate the Court’s PI order during the conference or through the information sent to the press,” a statement from the mayor’s office said, who told the Bronx Times they will present an argument on the motion on Dec. 21.

Despite Adams stating that names of the individuals were not to be named, information from the report were the basis of two New York Post articles on Aug. 3 and 4, the latter article exclusively singled out H.G. — one of the 10 plaintiffs under court-sanctioned anonymity — whose name and picture were published in the articles.

The city’s report attributed 101 arrests to H.G. but attorneys say that of those arrests 15 were convictions and 5 were open incidents for shoplifting, and the remaining 81 arrests were resolved without a conviction and therefore are sealed. In addition, the report lists two more “convictions” than the numbers of identified misdemeanor and felony convictions, indicating two of the listed “convictions” were likely for violations.

“This harm to H.G.’s reputation and the invasion of his and his family’s privacy can never be undone. When his name is typed into Google, the first several results that come up pertain to his arrest record, and all of these are connected with news articles published on or after August 3, 2022,” an except from the court filing reads.

In addition to the court finding the city and the NYPD in non-compliance, plaintiffs and their legal counsel seek a court order that would prohibit the city from sharing information related to a sealed arrest information with media outlets or broadcasting that information through other channels.

When Manhattan Supreme Court Justice Lyle Frank issued a court order in September 2021 prohibiting the NYPD from using a decades-old practice of using sealed arrest information — mug shots, arrest history, fingerprints and other identifying information — in active investigation, he noted that “once a sealed document is seen it cannot be unseen.”

According to 1976 state law, sealed records which are kept in at least 14 NYPD databases, can only be accessed via a court order. The 1976 statute specifically recognized that the use of such records in criminal investigations fell “disproportionately” on racial minorities who had long been the subject of discriminatory police and patrol efforts.

On Dec. 21, the NYPD will need to propose a plan that is in accordance with Frank’s order which prohibits the NYPD from giving officers access to the sealed arrest records of millions of New Yorkers for law enforcement purposes, directs the NYPD to issue organization-wide corrective instructions that such access is illegal and propose significant changes to its databases that are required to end the widespread unlawful access to sealed records.

Bronx case at the center of NYPD sealed records decision last month

Court documents obtained by the Times, show that the NYPD informed the court, by 2023, that they will publish a list of NYPD personnel with “permitted access” to its sealed records.

Jain told the Bronx Times that much of the NYPD’s plan to prohibit it’s use of sealed records, as accordance to state law, and it’s scope of “non-investigatory use” of sealed records is so “broad and vague” and subjective that it would still allow sealed records to be accessed improperly.

The NYPD admitted that about 800 people within its ranks have access to approximately 6 million sealed records linked to about 3 million people. While police officers on patrol and detectives don’t access sealed records, they were able to obtain them from their supervisors, usually sergeants or high-ranking officials.

At the center of a year-long class action lawsuit filed by the Bronx Defenders, was a Latino man identified only as R.C., who was arrested for a 2015 robbery in the Bronx after NYPD detectives showed his photo from a 2011 sealed arrest to a victim. During the case, evidence uncovered by the Bronx Defenders attorneys shows the NYPD had continued to access such information without court orders and had trained its officers to do so.

R.C., the lead plaintiff, claimed in the suit that by the time prosecutors dropped charges against him the following year because he had an alibi, his life had been largely disrupted. R.C. had to make roughly 10 required court appearances while living 75 minutes by car from the Bronx courthouse, which caused him to lose his job at a restaurant, his complaint says.