The Secret Memos New York Courts Refuse to Give Up

When New York Focus revealed the memo’s existence, a spokesperson for the court system described it as “normal practice.” But these documents are generally kept secret, leaving New Yorkers in the dark about the instructions their judges receive on issues ranging from bail to evictions.

That reporting, and the state’s response to it, led the New York Civil Liberties Union last summer to sue the Office of Court Administration, the agency that runs the state courts, seeking to force it to release a decade’s worth of the memos.

“The court system’s spokesperson tried to brush it off by saying this is a routine practice,” said Terry Ding, an attorney for the NYCLU. “It seemed to suggest that they issue instructions like that with some frequency. That’s when we started looking into it.”

In October, a state judge ruled in the NYCLU’s favor, finding that the public is entitled to access the instructions under the state’s freedom of information law. But OCA appealed the ruling, continuing its fight to keep the documents secret. The appeal is still pending.

Other states and even some subsections of New York’s court system make similar documents public. Watchdogs say that it’s essential for transparency and accountability that OCA join them.

“Is what’s in these memos something that the public would be upset to learn about?” said Evelyn Malavé, professor at Hofstra Law School and author of a forthcoming academic paper on OCA. “It’s impossible to make that assertion right now, but the fact that there’s been so much resistance to releasing them has been very unsettling for that reason.”

OCA spokesperson Lucian Chalfen declined to comment, citing pending litigation.

Transparency advocates had hoped that a change in leadership this spring might shift OCA’s recalcitrance: In April of this year, Rowan Wilson became chief judge of New York, a role that includes running the entire court system.

Since joining the Court of Appeals, New York’s highest court, in 2017, Wilson has built a reputation for expansive views on civil liberties and government accountability. In one early sign that he might lead the court system in a new direction, he oversaw an order that banned court-sponsored security for former judges — a perk that Wilson’s predecessor, Janet DiFiore, received for years off the books as a judge, and for months following her retirement in 2022.