Police Clerk Sues Chief for Ordering Him to Withhold Public Records
This time a former employee is suing on grounds of wrongful termination for not complying to Police Chief Gorden Eden’s orders to find ways to deny public records request.
The New Mexico police agency has been a long-time violator of public records requests. Just last month, PINAC News reported on the many lawsuits that have been brought against the department for violating public records laws or increasingly delaying public records request.
The lawsuit, which can be read here is being brought by Reynaldo Chavez, who is the former records custodian for the police department.
Chavez is seeking monetary damages for conspiracy, breach of contract, spoliation and violations under New Mexico’s Whistle Blower Protection Act.
Named in the suit is Albuquerque Police Department Police Chief Gorden Eden, Assistant Chief Robert Huntsman, Legal Counsel Kathryn Levy, and the Executive Director of its Administrative Support Bureau William Slausen.
According to the suit, Chief Eden constantly ordered Chavez to find ways to avoid releasing public information to requesters such as the media, private individuals and bloggers.
The suit specifically states Chavez was ordered to, ” deny, withhold, obstruct, conceal, or even destroy records.”
Chavez goes on to say in the suit that he was told to:
“Creatively identify an allowable exception [of] the Inspection of Public Records Act to withhold production of responsive public records in an effort to “baffle” or frustrate the requestor or otherwise burden them,” and ” to fabricate reasons to burden requestors with additional requirements when such requirements were not needed such as case numbers or increased particularity in a given request.” and “arbitrarily delay production of responsive public records without justification supporting such delay.”
The Albuquerque Polce Department released the following statement:
“[We] carefully evaluate document requests to ensure that it does not release sensitive information, such as social security numbers, documents that are confidential by law, or evidence that could compromise an investigation. Albuquerque Police Department is committed to transparency and strives to improve how quickly it is able to respond to requests from the public.”
Chavez eventually became fed up with the Chief’s unlawful demands and as a result Chavez complained to upper level police officials. Once word got back to the Chief, Chavez was fired.
In the lawsuit, Chavez included 11 exhibits of proof showing how the police department gave incomplete reply’s to records requests; one of which included a quote from Police Department Legal Counsel Kathryn Levy saying, “There are items we just will not release and we will just pay the fines or lawsuits.”
In another instance, Levy instructed Chavez to give a KRQE reporter a box of records that had nothing to do with the requested information regarding the Department of Justice’s investigation into the beleaguered police department.
Recently, Eden’s department has been under scrutiny by even the United States Department of Justice, which usually gives a free pass to departments with excessive force issue.
According to TIME:
A federal investigation into the Albuquerque police department found “a pattern or practice of use of excessive force, including deadly force” that violated the Fourth Amendment, the Justice Department said Thursday.The probe, launched in 2012, found that the Albuquerque Police Department too often uses deadly force, applies less lethal force—like Tasers—unnecessarily, and too often uses force against people with mental illness. The report also details problems within the department that include inadequate training and lack of accountability.
Chavez also claims the defendants do not qualify for immunity, because they were acting outside of their official duties when they instructed him to impede various requests and then retaliated against him by firing him.
All states have Freedom of Information Act Laws, so complying with those laws was the main scope of Chavez’s duties.
After the shooting death of a mentally ill man, James Boyd, which made national headlines, Chavez received numerous records requests seeking email correspondence, a list of personnel involved in the incident, forensic ballistic reports, audio and video tape as well as many other requests pertaining to the murder of Boyd. The video involving the shooting death of Boyd can be seen below.
Chavez’s lawsuit also alleges that, “Defendants individually and collectively reviewed responsive information and instructed Mr. Chavez to withhold or delay production of certain materials to requesters without a lawful exception allowing such withholding or delay.”
Chavez says the department was “tactically coordinating” which records requests would be fulfilled and which ones would be delayed, or not fulfilled at all, so certain requests would not be granted to the media. In other requests, Chavez was instructed to give them so much material that the requester would tire from sifting through it all, and never actually find what they were requesting.
Also implied in the lawsuit is that, “Upon information and belief, responsive material, including video footage, relating to the shooting of Mr. Boyd remains unproduced to requesters.”
But perhaps even more alarming than withholding unseen video footage in the Boyd case are claims that APD monitored following protests against the officers who shot Boyd and that, “APD deployed as many as four detectives dressed in plain clothes to observe the protesters. One of these detectives surreptitiously recorded various citizens.”
Chavez’s lawsuit also claims that when he went to his superiors and told them that he believed in good faith that their actions were improper, and in violation of the law, that he was retaliated against–and then fired, which is where the violation of New Mexico’s Whistleblower Protection Act comes in to the suit.
Ultimately, according to Chavez, the defendants worked in concert with one another for the purposes of retaliating against him for standing up to his superiors who apparently still have something to hide regarding the Boyd shooting.
After much outrage and many protests from the public, the two officers involved in Boyd’s shooting were finally charged with 1st degree murder, but that was later reduced to 2nd degree murder for both of them. Keith Sandy retired over a year ago. And Dominique Perez was ultimately fired. Their trials are set tentatively for August of 2016.
Back in June of 2015, PINAC reported that officer Keith Sandy planned and premeditated to shoot Boyd in the penis before he even arrived on the scene where the mentally ill, homeless man was camping. His statements were captured on his own dash cam recording.
An attorney seeking justice in the Boyd case claims that Sandy would have indeed shot Boyd in or near the penis, except for Boyd turned around after officers tossed a flash grenade in his direction and began shooting him. Ballistic reports show Boyd was shot in the buttocks instead.
They also claim Boyd was a threat, even though he was standing at least 30 ft away from the heavily armed officers. Boyd was holding two knives, but never came towards the officers before they shot him.
Not surprisingly, APD claimed, as every department does, that the shooting was justified because Boyd was making “threatening gestures” with the knives he was holding, although the video shows that obviously isn’t the case.
While police unions are indeed a problem for departments that would like to ferret out the so-called bad apples, one could also conclude that so is a chief who talks out of both sides of his mouth.
On one hand, Chief Eden admits there are bad apples and the police union protects them, so he can’t fire them to clean up his department. On the other hand, Chief Eden [allegedly] encourages his records custodian to impede public records requests so the public isn’t able to see the problems within his department.
In light of the lawsuit filed by Reynaldo Chavez, perhaps it’s reasonable to conclude that Chief Eden falls into the category of police who are on the force who don’t belong on the force. The public deserves transparency from the government that is supposed to serve it, and that’s much of what PINAC is all about. A media outlet shouldn’t fear standing their ground on records requests for fear that they may lose access to news in the future. This lawsuit highlights how that often happens, and not just with the Albuquerque Police Department.
PINAC writer Ben Keller contributed to this report.