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

from the press-'delete'-to-retire dept

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 completely undermine 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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Comments on “Former NYPD Boss Ray Kelly's Emails 'Inadvertently' Wiped Despite Court Order To Preserve Them”

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Anonymous Anonymous Coward says:

Coin Toss or Rochambeau?

Is there anyone who thinks that when the court that ordered the preservation finds out about the failure to preserve that harsh consequences will be handed out?

Will the poor sap IT person following instructions be faulted by those pointing fingers, or will supervisors be severely reprimanded and given extra vacation, or will some manager wind up in jail and with a loss of job?

Nah…I bet the judge gets seriously verbose about someones failure to uphold court orders and then decides the case for the defendants because of the lack of evidence.

Anonymous Coward says:

What is good for Hillary is good for others

Who can blame him, Hillary can get away with running the State department from personal email, wiping it and now running for President. Why can’t a lowly police chief do it? This is why no official, regardless of party should be allowed to get away with this. But the sheeple will vote for Hillary anyway.

Peter (profile) says:

Is there any particular reason Curt Beck is not in prison for obstruction of justice? As city attorney in charge of this case, it would have been his responsibility to ensure the appropriate steps are taken to prevent emails from being deleted.
One would think his responsibility would have securing a backup of the files in question in his safe, and/or locking away the entire computer the minute the court ordered the emails to be secured.

Personanongrata says:

Arbitrary Application of the Law is Tyranny

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

Ask yourself this dear citizen:

What type of sanctions would the government levy if you a loved one or friend were to have ‘Inadvertently’ Wiped your data (in this case emails) Despite Court Order To Preserve Them?

Anonymous Coward says:

Re: Re:

The revolution will cause that to happen. That’s a when not an if. People have tried to peacefully work within the system to get rid of the corruption. In turn they have been beaten, brutalized, tortured, illegaly imprisoned and murdered.

The only recourse when peaceful attempts at fixing a tyrannical government that uses brutality to put down their citizens rights is to revolt. or roll over and accept that boot up your ass and on your face.

Anonymous Coward says:

Yeah right...

I work in IT, though I have never worked with state secrets or anything like that so there might be room for error.

The way I see it, there is no way this could be accidental.

First of all, no email infrastructure would be one-way anymore. (and hasn’t been for a long time) The silly excuse that emails were stored locally on a computer that was since formatted is so completely bad.
Are they telling me that if his computer got stolen or broke down, he would simply lose all his emails? Complete crap, I answer to that!

Second of all, the emails should be preserved for the next guy who holds that position. I don’t believe they would just delete the mailbox that possibly contains important information and agreements. In business that is unheard of, and it is even more important when it is not just money on the line.

Thirdly as people mention earlier in the comments: Unless they have some sort of automatic system that looks in the backups and deletes the mailbox there as well, then it would be a annoying and daunting task to go into each backup (including tapes, which is good practice to use) and delete them seperately there. I don’t buy it for a second.

Finally: Why isn’t there a freaking law that forbids deleting something as important as emils? Are you telling me that as soon as somebody steps down he is exempt from corruption charges and misuse of power charges against him? For that reason alone they should be required to keep emails in backup for 10 years. They work FOR the public and FOR the people, so even though there are secrets we shouldn’t know, they still answer to us, and as such they should not be allowed to delete anything. I still wait for the day when people who has the highest positions in our society are also kept to the highest standards.

Anonymous Coward says:

I almost wiped some litigation e-mail today

I don’t know how almost it was, but I was asked to come in and do some exports on a local Microsoft exchange system so they could preserve some data and migrate less to Office 365 (I question the necessity, but it is what the customer wanted). I ran a few simple commands to do this which ran over the long weekend. I’m glad I checked my work because while I originally intended to export both the primary mailboxes and the archives, I inadvertently exported the primary mailboxes twice, only naming the second copy .archive.pst. When I took a look at the data I thought it was peculiar that both the .pst and .archive.pst files were almost the same size.

Had I moved on to the next steps of removing the litigation hold, the system would have purged about a terabyte of e-mail, and if enough time had passed and it wasn’t discovered that the data wasn’t on the pst drives in time, it would have been lost forever.

This is just how I work, I check up on myself, generally assuming I have messed something up somewhere. If I didn’t, great, I leave the customer confident that the job was done right, every so often, I catch a mistake. If I hadn’t caught this one, it may have never been known, as this litigation hold data was deemed less likely to actually need to be produced, although it technically met the criteria for preservation.

That One Guy (profile) says:

"And what are you going to do about it?"

I’d say this is pretty clear evidence of just how in contempt the NYPD holds the court system. They’re willing to blatantly destroy evidence, and use the flimsiest excuses, because they know that the courts won’t do a thing about it.

If you know the legal system won’t hold you accountable, why not flaunt your indifference to any laughable ‘orders’ it hands out?

Ninja (profile) says:

Re: "And what are you going to do about it?"

That. Regardless if it was accidental, inadvertent or whatever it is a court order. So at least those in charge of the infra-structure and the accounts should be punished for directly disobeying a court order.

I’m willing to bet nothing will happen in the High Court. Now if it were the Low Court…

That One Guy (profile) says:

Re: Re: "And what are you going to do about it?"

Low court those responsible would be facing down contempt of court, destruction of evidence, and probably any other charges the judge could think of.

High court though, the judge will just tisk tisk, chide them for destroying evidence, and shrug with a ‘Well what can I do about it, they said it was accidental didn’t they?’

Rekrul says:

What’s the problem? Everyone knows that it’s 100% impossible to erase information from a hard drive. Just undelete the files! Any pimple-faced hacker with half a brain can recovery every single scrap of data that’s ever been saved to a hard drive since the day it left the factory!

To truly get rid of data you need to drill holes through the drives, smash them with sledge hammers, melt them in a blast furnace and then crush them down to the size of a pea. And even then experts can probably still recover about 90% of the data.

CSI wouldn’t lie about something like that…

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