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NYPD 'Secret' Classification For Documents 'Means Diddly' In Eyes Of Legal Experts

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NEW YORK -- Since at least 2003, the New York Police Department has been labeling some of its internal documents "Secret," a designation that has baffled government secrecy experts, journalists and civil liberties lawyers.

Experts consulted by The Huffington Post also said the practice has no basis in New York state law.

"You know what that [label] means? It means diddly," said Robert Freeman, executive director of New York's Committee on Open Government. "I think the police department is following the lead of the federal government. The difficulty is, in my opinion, it does not have a legal basis for doing that."

The marking has been in use since at least 2003, when the NYPD's controversial Intelligence Division affixed it to reports from the broad police spying operation aimed at protests of the 2004 Republican National Convention. The division has continued to label documents as such, most recently on those related to its surveillance of Muslims.

Some of the documents also include the caveat, in all-caps, that "No portion of this document can be copied or distributed without the exclusive permission of the policy commissioner or deputy commissioner of intelligence."

By labeling documents "secret," the Intelligence Division appears to be operating its own in-house classification system, similar to those used at federal agencies like the CIA, where Intel's chief, David Cohen, previously worked for 35 years. Unlike at the federal level, however, no statute or public executive order appears to support the use of the "NYPD Secret" label.

Christopher Dunn, associate legal director at the New York Civil Liberties Union, told HuffPost he has only seen the label on documents created after 2001. He agreed with Freeman that "as far as I know, this marking has no legal significance."

The NYPD, which recently installed John McCarthy as its new deputy commissioner for public information, did not respond this week to six emailed, telephoned and tweeted requests from The Huffington Post for information on its "Secret" designation.

Neither Freeman, whose committee oversees implementation of the state Freedom of Information Law, nor Steven Aftergood, director of the national Federation of American Scientists' Project on Government Secrecy, has ever seen a similar marking employed by a local police force.

Beyond questions about the marking's legal significance, however, both Freeman and Aftergood also expressed concern that it might still serve as an internal administrative obstacle to the NYPD releasing documents under the state Freedom of Information Law.

The NYPD is notoriously negligent in fulfilling its duties under FOIL. A review of city agency public records responses conducted by Public Advocate Bill De Blasio earlier this year assigned the force a failing grade.

Some experts don't understand why or how the classification came to exist in the first place.

"It's never been clear to me what they meant by putting those classifications on them," said Len Levitt, an independent journalist whose reporting has produced many of the internal documents on the NYPD's Muslim surveillance. "I think they were just winging it."

The problem with "winging it," said Aftergood, is that "this kind of quasi-classification marking on a non-federal document ... may create some unnecessary confusion."

At the federal level, the classification of documents is controlled by executive orders, a security clearance system and an intricate series of laws, like the 1917 Espionage Act.

Aftergood and others have criticized the over-classification of documents at the federal level, but without a "fully articulated classification (or security clearance) system," Aftergood said, the NYPD's marking opens up a bevy of other questions. Among them, who is eligible to read the documents, how a document becomes "declassified," whether the marking affects sharing with federal or other government agencies, and what happens to an officer who discloses information in one of the documents.

"I guess the New York City Police Department decided that, if it works for the feds, it should work for them," said Ron Kuby, a civil liberties and criminal defense lawyer who has repeatedly sparred with the police in court. "And really, given the militarization of the NYPD, it's no crazier than having the ability to shoot down aircraft."