City Is No Longer Reporting the Costs of Its Settlements of Federal Cases

City Is No Longer Reporting the Costs of Its Settlements of Federal Cases

Colin Moynihan
New York Times
Sun, 12/09/2012

The New York City Law Department has quietly adopted a practice of withholding from public filings how much it pays to settle most federal court cases filed against the city or its employees.

Those amounts were once routinely included in documents placed into courthouse files, but about three years ago the agency began telling plaintiffs’ lawyers that the figures would be omitted from court filings as a condition of settling labor and employment cases. The policy was broadened in November to include lawsuits filed against members of the Police Department.

Law Department officials, who discussed the policy but did not agree to be quoted by name, acknowledged that in a majority of federal court cases that it settles, courthouse records no longer disclose how much the city paid out. The officials said that settlement amounts, however, remain available to those who file a Freedom of Information request or call the Law Department.

“We freely provide information about settlements upon request,” a Law Department spokeswoman, Kate O’Brien Ahlers, said. “That cooperation has always been forthcoming and will always be forthcoming.”

Some plaintiffs’ lawyers and civil liberties lawyers criticized the shift, saying the assistance of the city was now required to obtain information that could once be obtained without its knowledge or permission. Several of those lawyers contended that while the practice of keeping settlement amounts confidential was common in private practice, the city had a greater obligation to operate transparently.

“It is every New Yorker’s right to know how their tax dollars are being spent,” said David B. Rankin, a lawyer who recently handled an unlawful-force case against the police in which the settlement was not disclosed in court filings. “And it is particularly important to know how that money is being spent when it is being used to compensate the victims of misconduct by our Police Department.”

Mr. Rankin said city lawyers had been making settlements contingent on acceptance of the new practice, adding that the department had apparently been “quite firm” on that point.

The policy recently arose in a case involving a man who accused three police officers and a sergeant of arresting him and two friends and then using “fabricated police paperwork” to falsely assert that the three had been gambling.

About a week before Thanksgiving, lawyers for the city agreed to pay the man, Frankie Lee Smith, $20,000 to drop his suit, but said they would omit the payment amount from documents placed into the courthouse file.

“I was very surprised,” Gabriel Harvis, a lawyer for Mr. Smith, said. “The more I thought about it, the more it troubled me.”

Most federal court suits brought against the city and its employees had been settled with multipage documents titled Stipulation of Settlement and Order of Dismissal, which enumerated settlement amounts and were placed in files kept at courthouses and included on an electronic docket accessible through a service called Pacer.

The city’s new procedure divides the paperwork into two parts: a Stipulation of Settlement, containing the amount the case is being settled for, and a two-sentence Stipulation and Order of Dismissal. The dismissal orders are placed in a courthouse file and can be seen on Pacer, while the Stipulations of Settlement are not.

“To the extent that this is a deliberate change of policy, it is inconsistent with a significant public interest and First Amendment value of the public having information about the behavior of its government,” said Floyd Abrams, a noted First Amendment lawyer.

Thousands of lawsuits are filed against New York City agencies and employees every year. The city comptroller’s office said the city spent $664 million in the 2011 fiscal year on settlements or awards stemming from those lawsuits. The figure for the 2012 fiscal year was $583 million.

City officials said the Law Department began omitting payment amounts from publicly filed documents in employment cases after one federal judge voiced discomfort with such disclosures. In a second case, involving the police, officials said that Judge Kiyo A. Matsumoto, in Brooklyn, said recently that she did not want to approve the settlement of a lawsuit that included paperwork listing an amount. The judge did not respond to a message left with a staff member in her chambers.

“The city recognized that all we really need to do is file a stipulation of discontinuance as a matter of general practice,” an official said. Law Department officials added that the city had long settled cases in state court without including settlement amounts in paperwork placed in courthouse files.

For now, Mr. Harvis said, he has come up with at least a temporary response to the new rules. He said he recently told a lawyer for the city that he would be adding his own document to the public docket that would make it clear how much money the city was paying his client.

“I feel a certain amount of obligation,” he said, “to keep this information in the eye of the public.”