Brendan J. Lyons
ALBANY, N.Y. — A longstanding practice by certain state agencies to use "administrative" subpoenas to sift the personal mobile phone and private email records of employees targeted in non-criminal personnel investigations is facing its first legal challenge.
A civil complaint, filed recently in state Supreme Court in Albany by the union representing State Police investigators, is seeking to end a practice that it claims is an unconstitutional abuse of authority.
The petition on behalf of two unidentified State Police investigators — listed in the court filings as "John Doe" and "Jane Roe" — accuses the agency of issuing administrative subpoenas without statutory authority and under a self-enacted regulation that does not require or allow the employees to be notified their private records have been accessed. Through the years, state agencies have used the subpoenas — which are usually not linked to a court case or authorized by a judge or grand jury — to access records from banks, phone and internet companies, as well as outside employers.
The subpoenas are issued "in secret — without notifying the true parties of interest, or affording those parties the opportunity to challenge the factual basis, relevancy or scope of the subpoenas," the court petition states. It was filed against the State Police and its superintendent, Keith M. Corlett.
Christopher M. Quick, president of the New York State Police Investigators Association and a petitioner in the court case, did not respond to requests for comment.
The union representing state correction officers, New York State Correctional Officers & Police Benevolent Association, said its efforts to press for legislation that would clamp down on the state's use of subpoenas has failed to gain traction at the Capitol.
"In the past, NYSCOPBA has introduced and supported legislation that would protect our members and their families from unwanted and unwarranted invasions of privacy by requiring that they be notified of any subpoenas seeking their personal information," the union said in a statement. "We will continue to seek the enactment of this bill. We stand in solidarity with other public sector unions on this issue, and we urge state legislators to protect our hard-working brothers and sisters all across the state."
The use of administrative subpoenas to gather the personal records of state employees dates back years and is not limited to the government workers. In many instances, state agencies have used the subpoenas to also gather records on the spouses or other relatives of state employees in connection with personnel investigations.
The attorney general's office said it has no oversight of the practice, and the comptroller's office said they have no record of auditing agencies' use of the subpoenas.
A spokesman for Verizon, which like other mobile phone providers promptly turns over their records in response to the administrative subpoenas without notifying customers, declined to respond to questions about their current policies governing the disclosure of the private information.
Instead, the company provided a copy of its most recent "Transparency Report," which indicates Verizon had received more than 68,000 subpoenas for records in the first half of 2019, and rejected just 3 percent of those requests. In many instances, the company said, the subpoenas are rejected if they seek information — such as stored data — that is not subject to release under a subpoena, or for clerical errors such as if the targeted person's phone is serviced by a different provider.
The report issued by Verizon includes its responses to many questions about its handling of search warrants and subpoenas, but does not provide any information about policies to notify customers if their records have been subpoenaed.
"A prosecutor or law enforcement official may issue a subpoena to seek evidence relevant to the investigation of a possible crime," Verizon's website states.
The administrative subpoenas issued by the State Police to Verizon typically include this statement: "Due to the sensitive nature of this investigation, the State Police requests that the subscriber not be notified of the issuance of this subpoena."
Because these subpoenas are not issued through a court, the records turned over by the private providers in response to them are usually limited to call records and the information that may appear in a person's monthly statement. Judicially authorized search warrants would be needed to obtain copies of text messages or other stored data, such as photographs.
Wayne Spence, a state parole officer and president of the Public Employees Federation, is a harsh critic of the practice. Spence's wife's telephone records were secretly subpoenaed by the Division of Parole after he spoke at a 2006 legislative hearing in Albany that focused on internal problems at the agency.
The state eventually agreed to pay Spence more than $50,000 — plus several hundred thousand dollars in legal fees — to settle the federal civil rights lawsuit he had subsequently filed accusing officials of targeting him for termination as part of a witch hunt orchestrated in the wake of his public testimony.
Despite the alleged civil rights violations, state lawmakers in Albany took no action and have not formally reviewed or challenged the often unbridled use of administrative subpoenas by agencies that are conducting internal investigations of employees.
Around the time Spence was targeted, other parole officers — including several that the agency suspected had provided internal documents to the Times Union about the problems plaguing the agency — said they also had their personal phone and email records subpoenaed.
During that era, the parole agency was being headed by Anthony G. Ellis II, a State Police colonel who would later return to his job at the State Police and oversee its internal affairs unit. In that role, Ellis' signature line would regularly appear on the administrative subpoenas used by the State Police to gather phone and email records of members and other employees.
"He used parole administrative subpoenas to get access to cell phone records that were in my wife's name. My wife was and has never been a state employee," Spence said. "The state Legislature should make changes to the law so that agency heads cannot use the administrative subpoenas in such a manner. Anthony Ellis almost destroyed my life and also broke the law with the illegal and unethical use of administrative subpoenas against me."
In a pretrial deposition in January 2009, Ellis said he and another parole official initiated the investigation of Spence but he didn't recall whether he ever signed subpoenas for internal investigations. Still, he acknowledged there was abuse of the practice and said he had disciplined a parole supervisor who issued subpoenas without authorization to obtain personal phone records of officers.
Despite that disclosure, the matter was not referred for criminal prosecution, Ellis said in the deposition. Ellis left the parole agency in February 2007 and returned to his State Police job. He has since retired.
The subpoenas used by the State Police make clear they are not being issued as part of a criminal case, and the headers state they are a "Matter of an Administrative Investigation of the New York State Police." The subpoenas include a warning: "Failure to comply with this subpoena will subject you to all the penalties and damages provided for in Section 2308 of the Civil Practice Law and Rules of the state of New York."
But that section of state law only enables the issuer of a subpoena that is not issued by a court to petition a state Supreme Court justice to compel compliance. The maximum penalty for failure to comply with that type of subpoena is $50.
The civil complaint filed by the State Police investigators' union accuses the agency of deploying an "unfettered use of secret administrative subpoenas that do not afford police professionals the basic procedural and substantive protections against unwarranted invasions of personal rights and privacy."
The subpoenas have been used to also gather banking and outside employment records of state employees.
The unidentified investigators on whose behalf the petition was filed "believe" they are the subjects of a pending personnel investigation, but the filing does not provide any details about their cases. It says, though, that State Police used "secret administrative subpoenas" in August "to obtain electronic information from the personal smartphones of those members."
On Aug. 8, the attorneys for the two investigators contacted the State Police and demanded that they provide copies of and withdraw the subpoenas that had been issued to their mobile phone providers.
A week later, the agency responded that it was authorized under a state regulation that says their agency can issue subpoenas "requiring persons to appear before a designated division commissioned officer and be examined with reference to a matter within the scope of the administrative personnel investigation being conducted, and to produce books, payrolls, personnel records, correspondence, documents, papers, or any other evidence relating to such investigation."
But the union contends the agency's use of the subpoenas is unlawful.
"The power of a public official or agency to issue an administrative subpoena only exists when it is expressly granted by the New York State Legislature," the complaint states. "There must be some factual basis shown to support the issuance of an administrative subpoena ... (and it) may not be used by a public official for the purposes of discovery or to ascertain the existence of evidence."
The police union also argues that the state's power to issue subpoenas in employee investigations is governed by New York's Civil Practice Law and Rules, which spell out that subpoenas of that nature are to be served on "each party."
Thomas H. Mungeer, president of the union that represents state troopers, said the petition filed by the investigators' union is "well written" and that they will follow the case closely.
"A favorable decision will positively affect the members of the Troopers PBA," Mungeer added.