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Cheektowaga Police Department improperly withholding ID of man who died in custody, FOI expert says

The Cheektowaga Police Department is improperly withholding from the public the name of a 28-year-old man it arrested who later died in a town holding cell, according to the state's foremost expert on the Freedom of Information Law.

The police department on Thursday denied a Freedom of Information request from The Buffalo News, declining to release any records pertaining to the Sunday arrest of the man or his death hours later. The town said releasing the information would interfere with an ongoing police investigation.

"We don't have secret arrests in this country," said Robert Freeman, director of the New York State Committee on Open Government. "In this case, the record involves the death of a person who was arrested, and the fact of an arrest in this country is virtually always public."

Freeman has advised state and local governments on compliance with the Freedom of Information Law for 40 years.

The law allows police to withhold records if disclosing them would interfere with an investigation. But records that pertain to the man's arrest, including the man's name, should be released to the public even if records pertaining to the man's death are withheld while the investigation is ongoing, Freeman said.

"If this is an adult, I don’t believe there would be a basis for withholding the portion of the record indicating the person’s identity,” Freeman said.

The police department issued a news release Monday morning announcing that it had arrested a 28-year-old man on narcotics charges at about 9 p.m. Sunday. The man, who had been a passenger in a car that police stopped because of a traffic infraction, was charged with criminal possession of a controlled substance, criminal possession of marijuana, and false personation, The suspect was put in a holding cell at about 10:30 p.m. to await arraignment in court. At about 1 a.m. Monday, an officer noticed the man was bleeding and discovered that he was not breathing. Attempts to revive the prisoner were unsuccessful, according to police.

"The victim’s name is not being released by the Cheektowaga Police Department due to privacy concerns for the family," the department said in its news release.

In denying The Buffalo News request for records, the police department did not cite any privacy concerns. Instead, it said it would not release the documents because "they are part of an investigatory file."

"This is an active open investigation awaiting further reports from Medical Examiners office," wrote Lt. Patrick Chludzinski, the police department's FOI officer.

Freeman said police records generated by the arrest of the man - such as a police blotter or arrest report - were generated before the man's death. Disclosure of the arrest records should not impact the department's ability to conduct an investigation into the man's death, he said. Freeman said the police department also is running afoul of court rulings by issuing a blanket denial for any records related to the man.

Cheektowaga Assistant Police Chief Jim Speyer said Friday that the department does not want to release the records because it promised the man's family that it would not publicly identify him.

"We don’t want to identify him, for the family, to save them from the grief. Why doesn’t that matter to you guys?” Speyer said. "All we’re asking is out of decency to the family that we don’t release the name."

The Buffalo News on Friday appealed the denial of its FOI request.

After talking with Freeman and the arrested man's father, Speyer said late Friday afternoon that the police department plans to eventually provide The Buffalo News with the records, but he said it will wait at least another week, until after the man's funeral services, at the request of the man's father.



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