Simmering tension between the New York City Department of Correction and its oversight body, the Board of Correction, erupted last month after the board released a statement decrying how the department limited the board’s previously unfettered access to the DOC’s video database. The policy change came after the board provided entire investigative files as well as unflattering video from inside jails to journalists via freedom of information law requests. Several media outlets rushed to claim their coverage prompted the change.
Correction Commissioner Louis Molina responded in military cadence to questions about his actions during a Jan. 25 New York City Council hearing citing a need to “align our rules of engagement with the Board of Corrections with the City Charter.” Never once in Molina’s sworn responses at the hearing or in his public comments about the revocation over the following weeks did he mention that his actions were in reaction to a particular event.
But Molina’s private correspondence with the Board of Correction doesn’t quite match his public statements. A letter obtained by City & State lays out Molina’s political concerns about making the department look bad, based on erroneous legal reasoning, as the fulcrum of his decision to revoke the BOC’s access.
The letter from Molina addressed to new BOC Chair Dwayne Sampson explains his rationale for the access revocation was a FOIL response that NY1 reporter Courtney Gross received from the BOC of video footage taken of Erick Tavira on Rikers in September 2022. Tavira died a month after the footage in question was taken. The three-page letter, dated Jan. 13 and obtained by FOIL request, makes a string of alarming accusations and misstatements about the BOC’s role; state FOIL law; the New York City Charter; and, without naming her, wages war on Amanda Masters, the executive director of the Board of Correction. What seems apparent in this document is that the correction commissioner is not taking top level direction from any of the 30 new top-level managers he has hired over the past six months. Had he allowed his deputy director of legal affairs or deputy director of communications to counsel him before declaring an ill founded war on the department’s oversight body he may have foiled what fittingly will be remembered as his first folly.
Notably, Molina is wrong about the FOIL exemption he is citing. The commissioner states that he consulted with the corporation counsel’s office regarding his decision to revoke BOC’s “unfettered” access to all DOC video footage. Had he also bothered to consult any other attorney on the FOIL case law that allegedly underpins his outrage at the BOC, Molina may have found that his reading of exemptions for materials involved in active death in custody investigations is not accurate.
“As you know, FOIL exempts disclosure of materials that ‘would interfere with law enforcement investigations,’” Molina wrote, citing a section of state Public Officers Law and a 2021 Appellate Division ruling in the case New York Disability Rights v. New York State Commission of Correction, that he claims mean that “records about inmate death under investigation by SCOC are exempt from disclosure.”
“Had the reporter contacted any of the other agencies charged with investigating Mr. Tavira’s death,” Molina seethed, “I am confident that none of them would have provided what BOC disclosed.”
Unfortunately for Molina and his legal argument the decision that he cites does not establish this precedent under any possible reading of the justices’ opinion. In fact, in the very decision Molina cites, the appellate panel took pains to say the exact opposite.
"That is not to say that every document that respondent maintains with respect to an ongoing inmate death investigation is automatically shielded from disclosure,” Justice John Egan Jr. wrote in the decision, “however, here, the M–187 forms that petitioner has requested are the only documents presently before us for review."
The case that Molina cites clearly states the only thing automatically shielded from FOIL during the pendency of death in custody investigations is the specific SCOC M-187 medical form, not every piece of media and information about the subject in the agency records.
Furthermore, the decision emphasizes that denial of materials surrounding the investigation of the death of a person in custody must be specifically explained in terms of adverse effect to the denying agency: "the agency relying on the applicability of a FOIL exemption has the burden of establishing that the [requested] documents qualify for the exemption and, to meet that burden, the agency must articulate [a] particularized and specific justification for denying disclosure." Molina does not offer any details in his letter as to how the release of video from a month preceding the death of a person in custody would endanger any ongoing investigations.
The Department of Correction did not respond to a request for comment.
The most quixotic of Molina’s gripes revolves around an incident on Oct. 22, 2022, when he claims he did not have enough time to respond to a notice the BOC was intending to release a report about the overuse of lockdowns, the practice of “shutting down” jail units by curbing access to all required out-of-cell-time, phone calls, legal libraries, court appearances, medical appointments, commissaries, barbershops and visits. A bit of context: Molina had just skipped the Sept. 13 and Oct. 18 BOC hearings. During the October BOC meeting, four days before the incident he complained about in his letter, the board expressed its dismay over a “significant number of lockdowns in recent weeks.” But the commissioner and every single member of his staff skipped the hearing. The depths of hubris Molina draws on to make this accusation in the context of his churlish refusal to appear and engage with the BOC during regularly scheduled meetings just four days prior to his perceived slight is nothing less than staggering. For the entire ten months preceding the BOC report’s release the commissioner had: refused dozens of BOC information requests about staffing, programs, missed medical appointments, suicide prevention aids et al; refused to allow the BOC to participate in the Rikers Island Interagency Task Force; and refused to share the DOC’s plan for the contentious revamping of the new RMAS or “solitary lite” units with the BOC. Despite this, not once has anyone from the board stated publicly that Molina’s behavior was “not how a responsible commissioner should act” – the way that he said the board was not acting “how a responsible oversight body should act.”
The DOC commissioner mischaracterizes a meeting between BOC staffers and members of the Manhattan District Attorney’s Office, writing that “I have read the City Charter, and nowhere do I find authority for BOC to do roadshows to present DOC in the worse [sic] possible light.” Under the charter, the board does have the rights to produce “studies and reports in regard to methods of promoting closer cooperation of custodial, probation, and parole agencies of government and the courts.” A reasonable person could assume that meeting with district attorneys offices is part of the job of employees tasked with producing studies that “promote cooperation between custodial agencies and the courts.”
The commissioner doubles down on his gaslighting in the letter: “All of these actions have a common theme: BOC staff seem to have an agenda that gives me no confidence that the unfettered access to video footage is warranted.” Even if the commissioner had been correct in his interpretation of the FOIL case law and his imagined personal slights, he still does not have the right to revoke individual line items from the Board of Correction’s section in the City Charter – in this case, the line that reads that the BOC is afforded access to all DOC’s facilities “at any time.” Clearly if the commissioner is limiting access to facilities where the video footage can be viewed to only 9 a.m. to 6 p.m. Monday through Friday, this would violate the charter. The case could also be made that remote access via video monitoring is also a tool that allows “access at any time” to the jail facilities.
Other entities that have statutory access to the DOC video archive have not experienced the same revocation. State Correction Law provides that state Commission of Correction and its employees “must be granted access at any and all times to any correctional facility or part thereof and to all books, records, medical records of incarcerated individuals and data pertaining to any correctional facility deemed necessary for carrying out the commission's functions, powers and duties.” SCOC spokesperson Kirstan Conley told me that Molina had not curbed access to the state regulators in the way he had to the city. “Copies of video related to reported significant facility incidents and mortalities are regularly requested and received,” she wrote, “and the DOC has not indicated that this will change.”
Sarena Townsend, an attorney and the former DOC deputy commissioner of trials and investigations who was fired by Molina as one of his first acts when he took over the department in January 2022, said that Molina limiting video exemplifies his “track record of bad decisions,” grounded in a “desire to avoid accountability.” “Had Molina just stuck with ‘publishing stills from incidents still under criminal investigation obstructs the investigative process,’ he might have had a decent argument,” Townsend said. “Instead, he can't help but expose his actual agenda: to hide DOC’s violations rather than fix them.”
Under Mayor Eric Adams, several other aspects of the BOC’s independence and oversight capabilities have been carved out. For over a year, the mayor has issued emergency executive orders suspending many of the minimum standards the board is meant to enforce. The mayor has also continued the creative restructuring of the appointment process of the BOC members themselves, started by former Mayor Bill de Blasio, in a behind-the-scenes maneuver aimed at garnering control over the agenda and votes of the oversight board.
The BOC’s charter spells out the formula for appointments: “Three members shall be appointed by the mayor, three by the council, and three by the mayor on the nomination jointly by the presiding justices of the appellate division of the supreme court for the first and second judicial departments.” Technically, the presiding justices are responsible for nominating three BOC members, while the mayor just does the administering, as judges are prohibited by state law from making political appointments. Two of the new BOC members who were appointed into the judiciary’s slots by Adams, Jacqueline Pitts and Joseph Ramos, are former DOC correction officers and union members. Lucian Chalfen, spokesperson for the New York State Unified Court System, confirmed the mayor inserted himself in the nomination process over the judiciary for these two elections: “These board members were suggested and recommended by the mayor’s office, as these appointments are made in joint nomination with the mayor.”
On the agenda for the Feb. 14, board meeting is a vote on a resolution that would limit the number of required meetings the BOC holds each year from nine to six. Board Chair Sampson introduced the measure as one of his first official acts at the helm of the oversight board. This doesn’t appear to be the act of a person looking to expand the board’s reach. According to a source familiar with the board, Sampson has also instructed BOC members to submit their field research requests to investigators through him and to circumnavigate the board's executive director, Amanda Masters – an unprecedented upheaval of workflow by a board chair with zero law enforcement, investigations or correction experience into the procedures of a professionalized investigations staff.
While Sampson is an Adams appointee, a majority of board members were still appointed by the City Council, or the more reform-minded previous mayor, de Blasio. Given that and the board’s recent response to Molina limiting video access, and its recent response, this could be a new era of independence for the BOC operating without mayoral control not seen since before October 2014, when de Blasio abruptly forced out three Bloomberg holdovers. But independence will come only if the board is able to work around the churlish and paranoid mewlings of a DOC commissioner so embattled he seems to know no other marker of progress aside from the number of pretend wars he wages.
However, the board’s executive director, Masters, announced her intention to resign from her role as executive director of the BOC – reportedly to protest Molina’s actions. If Masters stays in government – as she did the last time she resigned her position as executive director of the BOC in January 2015 – she may find a desk in Public Advocate Jumanne Williams’ office at 1 Centre St., based on his questioning of Molina at the Jan. 25 City Council hearing.
“I’m very concerned about the camera situation,” Williams said at the hearing. “I would like to know what sparked the change because it does seem like it is more restrictive and unnecessarily so. So is there something that happened that made you have to restrict the access that the Board of Correction had?”
Molina, under oath, responded, “I think I wanted to ensure that the management of our jail was in compliance with the City Charter, like we have to be in compliance with a number of different areas in the management of a correctional facility.” Williams responded with, “I have to say that even with that response that it seems to me that there was no specific reason to do that other than that you wanted to take away access that the Board of Correction had, perhaps because they were shining a light on a lot of things that the department didn’t want anyone to see. And I’m hoping that that was not the case but I’m not hearing a real reason.”
For his part Adams has supported his commissioner’s maneuver. “I trust Commissioner Molina and let’s be clear, they do have access to the video,” he said at an unrelated press conference in January. “He put a procedure in place for them to come to Rikers to see the video … He obviously didn’t do it to be mean spirited. He’s too nice of a guy.”
Kelly Grace Price is an advocate concentrating on issues faced by women and girls incarcerated in jails and prisons, and the founder of Close Rosie’s, focusing on the Rose M. Singer Center on Rikers Island.