Updated: December 16, 2020 06:14 PM
Created: December 16, 2020 06:04 PM
ROCHESTER, N.Y. (WHEC) — When the City of Rochester's Office of Public Integrity released its report on the actions of Mayor Lovely Warren and her senior city manager concerning the death of Daniel Prude, the report said it did not have direct access to certain text messages from the police chief to the mayor.
Why? Because the texts were sent to the mayor's personal cell phone.
So News10NBC looked into whether those texts are public records.
The short answer, based on conversations with First Amendment attorneys and the state's Committee on Open Government, is yes.
They told us the device doesn't matter. The content matters.
Wednesday News10NBC officially applied to see those texts.
The report from the Office of Public Integrity says the texts from then Rochester Police Chief La'Ron Singletary to Mayor Lovely Warren happened on April 10. That's the same day the Monroe County Medical Examiner released the autopsy on Daniel Prude and called his death a homicide.
It is also the same day the chief sent an email to the mayor's spokesman, Justin Roj, telling him it was a "homicide."
Although the report exonerates the mayor and senior city managers of violating city policies and ethical standards, it does say investigators did not have direct access to the chief's texts because "during an interview with the mayor, OPI confirmed that all text messages from Chief Singletary were sent to the mayor's personal cell phone."
Chief Investigative Reporter Berkeley Brean: "If public officials are communicating with each other on a public issue and the text messages go to a private phone, is that information public?"
Blair Horner, NY Public Interest Research Group: "Well all these issues in state law come down to specific facts but by and large the rule is if you're using your private phone for public business it should be public."
Blair Horner is head of the New York Public Interest Research Group, a statewide government watchdog.
Horner: "There's a reason why public officials use public phones, they're supposed to use them for public business."
I contacted the state's Committee on Open Government. Assistant director Kristin O'Neill told me "the device is irrelevant. The content is relevant."
She said texts are "records as defined by the Freedom of information law."
Wednesday, I asked the mayor's communication office for a copy of the texts.
I also filed a freedom of information request for the text messages.
The OPI report says the OPI investigators saw the texts in a round-about way. The report says the mayor forwarded the texts to the deputy mayor, although it doesn't say when. The texts were found in a keyword search the deputy mayor's email. The report says the texts investigators saw second hand back up what the mayor said—that the chief did not share details of Daniel Prude's cause of death with her on April 10.
While the report does not say when the mayor shared the chief's texts with the deputy mayor, the report says the deputy mayor did not receive any emails on Prude's death until Aug. 4, 2020. That's the day the mayor says she saw the RPD body camera video of Daniel Prude for the first time.
The report says the text messages are included in the Notice of Claim filed by La'Ron Singletary against the city on Dec. 3, 2020.
News10NBC asked the city and Singletary's lawyers to share the Notice of Claim—the first step in someone suing the city. The city did not provide it and Singletary's lawyers said they would not share it because of other on-going investigations including the independent investigation by the city council.
News10NBC filed a Freedom of Information request for the claim.
The Office of Public Integrity only looked into the actions of the mayor and senior city managers and whether they violated city policy.
It did not investigate any police officers. OPI is not authorized to investigate Rochester police officers.
That is being done by the state attorney general's office where a grand jury is hearing evidence.
According to OPI's website, the director of the OPI is appointed by the mayor and the director reports directly to the mayor.
Tuesday, we asked for a statement from the organization called Free the People Roc regarding the OPI report. FTP organized many of the protests after the deaths of George Floyd in Minnesota and Daniel Prude.
Here is what FTP emailed to News10NBC Wednesday:
"We're here today because it's been over 9 months since the RPD murdered Daniel Prude, and the Prude family has still not received justice. The cops who murdered Daniel Prude, Troy Talladay, Mark Vaughn and Franciso Santiago are still roaming freely, enjoying the holidays with their loved ones, while the Prude family mourns and suffers daily, without their brother, friend, father, uncle; he's gone.
"Receiving the report from the Office of Public Integrity today was like salt in an open wound to a community that has yet to receive an honest and accountable response from the Mayor and her employees regarding the murder of Daniel Prude. The images of Prude's arrest and subsequent murder are still fresh in our minds. The word homicide, written across his autopsy report, still haunts us. The facts of this case, plain for the entire world to see, have not been forgotten. Furious, we stand here once again to set the record straight, and assure you that we will not rest until Daniel Prude and Black people across the diaspora receive justice for his murder, and all Black lives lost to state sanctioned violence.
"Today, several news outlets in our city reported that the Office of Public Integrity - if you can even call it that - found no evidence that any city employee had violated any policies or ethical standards in the death of Daniel Prude. These news reports, as stated, are false, and dangerously misleading. Why? Because as anyone who reads the OPI's report will clearly see, the scope of their investigation did not include the most relevant group of city employees - the Rochester Police Department. DON'T BE FOOLED! The police are city employees! Our tax dollars pay their wages! Let us be clear - the news outlets that ignored this obvious and critical fact failed to accurately report on this issue, once again. They need to do better, and we are here to hold them accountable. A more accurately headline would've read:: OFFICE OF PUBLIC INTEGRITY LACKS INTEGRITY!
"As for the report itself - it's a joke, but we always knew it would be. Not a single rochester police officer was interviewed for this report. The internal communications of the RPD were not audited. Simply put, the largest group of city employees accused of murdering a human being, in clear violation of the ethics and policies of our city, were not even included in the investigation. The office tasked with preserving the integrity of city employees is incapable of doing so, and this report demonstrates that clearly.
"This investigation was an utter waste of time and resources, and was simply a ploy to protect Lovely Warren and prevent further accountability on the part of her administration and legal counsel. However, perhaps unintentionally, the report does reveal an important detail regarding the events immediately following Daniel Prudes murder. In reference to text messages exchanged between Mayor Warren and former RPD Police Chief Singletary on March 24th, the report reads:
"These messages were not available for the Office of Public Integrity to review via phone content retrieved off of the Mayor's city issued cell phone. During an interview with the Mayor, OPI confirmed that all text messages from Chief Singletary were sent to the Mayor's personal cell phone."
"So we ask the so-called Office of Public Integrity - what does that say about the ethics of our mayor? Would a mayor with integrity, not engaged in any wrong doing, who seeks to remain accountable to her constituents, choose to communicate with her police chief on a private, personal phone? A phone that she knows is not subject to investigation by your office? We say no! It is absolutely unacceptable that ALL TEXT MESSAGES between Mayor Warren and the Police Chief were exchanged effectively in secret. For all we know, it is standard in the Mayor's office for sensitive conversations to be conducted in this secret way. The fact that the Director of the Office of Public Integrity, Timothy Weir, did not choose to probe this matter further, in the context of an investigation of ethics violations, proves that he has very little to offer the people of Rochester when it comes to accountability and public integrity.
"It's important to note that Timothy Weir is appointed by the Mayor, and is her subordinate. Lovely Warren has full hiring and firing power over Weir. Any findings that do not paint her in a positive light, put him at risk of termination. Weir's subordinate role to the Mayor, creates a clear conflict of interest as it relates to this investigation. The City can not, and should not investigate itself. We call on City Council and the people of Rochester to join us in questioning every single aspect of this report, and demanding a new, independent inquiry is made into this clear conflict of interest. Further, we demand - and we truly can't believe we even have to say this - that cellular communication between the Mayor and any city employee be made on a city-issued phone effective immediately.
"This report was produced by bureaucrats that work for the Mayor, in order to defend her and the police department she is responsible for. Despite its claims, it provides no clarity or transparency regarding one of the most extreme and obvious instances of ethics violations in our cities history. The people of our city will not stand for this! We saw the crimes of those cops with our own eyes. In real time, we watched as the Mayor and her subordinates scrambled to cover up an OBVIOUS murder, while avoiding taking any responsibility whatsoever. We marched as they sent their thugs - the RPD, the Monroe County Sheriffs office, and Trumps FBI - into our streets to silence our dissent and terrorize our loved ones. We will not soon forget! We demand accountability! We are hungry for justice, and we are not done fighting for it!"
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