Sheriff cites inmate privacy as reason to not release use of force body cam video
A Buffalo News lawsuit seeks to force release of video showing an officer kicking an inmate's head
By Charlie Specht
The Buffalo News, N.Y.
BUFFALO, N.Y. — The Erie County Sheriff's Office has filed court papers in response to a lawsuit by The Buffalo News that seeks to force the release of body camera videos showing an officer kicking a handcuffed inmate's head, or near his head.
In its response filed Tuesday in State Supreme Court, Sheriff John C. Garcia's office cites inmate privacy as a primary reason it believes the jail videos should not be released.
The sheriff "believes that the footage, particularly if posted on social media or the internet, would be degrading and humiliating for the inmate" who was kicked by an officer.
County Attorney Jeremy C. Toth's legal filing does not cite any court rulings supporting its position that the footage should be withheld from the public. It says the Sheriff's Office would release the video to the inmate if he asked for it, but would not release it to The News.
The News "will post the video to its web site," Toth wrote. "From that point on, any search of this inmate's name in a search engine will no doubt direct web users to this video — forever."
The News filed a Freedom of Information request in April for the video of Corrections Officer Daniel Piwowarczyk kicking the inmate as he lay on the floor and for any reports the Sheriff's Office created about the incident. The Sheriff's Office provided The News with reports about the incident after its internal investigation cleared Piwowarczyk of wrongdoing. But it declined to release the video.
The News in October filed papers asking a State Supreme Court justice to order Chief John W. Greenan to turn over the videos. Greenan is a high-level aide who decides appeals after initial requests for sheriff's records are denied.
In a 1990 decision, a New York appellate court rejected the state's blanket denial of a request for a video that showed an inmate at Attica Correctional Facility, ruling that "an inmate in a State correctional facility has no legitimate expectation of privacy from any and all public portrayal of his person in the facility."
The Committee on Open Government, a part of the New York Department of State that offers expert advisory opinions on Freedom of Information Law issues, has written that videos of inmates can be withheld only if they show nudity or other intimate details.
Karim A. Abdulla, an attorney for The News, said that judges have ruled similarly in more recent Freedom of Information cases involving videos of inmates, including a 2012 ruling against the Erie County Sheriff's Office.
"While the Sheriff's Office argues that nondisclosure is needed to protect the privacy rights of the inmate, what I suspect is going on is, really, they don't want to release a video that might depict one of their officers in a negative light," Abdulla said.
State Supreme Court Justice Catherine Nugent Panepinto has scheduled oral arguments on The News' petition at 11 a.m. Nov. 30.
Toth and Sheriff Garcia declined to comment on Erie County's filing.
In this case, the Sheriff's Office internal investigators wrote that it was unclear whether Piwowarczyk's boot struck the inmate's head. But even if it had, their report noted, the inmate had just spit on Piwowarczyk, and the officer said he was trying to prevent the inmate from spitting on anyone else. They said Sheriff's Office policies allow the use of force in such a situation, even against a restrained inmate.
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