The question in this case is whether a court violates the First Amendment by barring a litigant from disclosing the source of information inadvertently produced in response to a Freedom of Information Law request.
The case stems from the New York Police Department’s decision in 2011 to use facial-recognition technology to help identify suspects. To learn more about the NYPD’s use of that technology, the Center on Privacy & Technology made a request under New York’s Freedom of Information Law. After the Center sued to challenge the adequacy of the NYPD’s initial response, the NYPD disclosed thousands of pages of documents. Among those documents were 11 pages of material that, according to the NYPD, should have contained redactions of protected information, but did not. The NYPD then sought a protective order barring the Center from using the inadvertently disclosed information.
Supreme Court granted the protective order in part. It ordered the Center to destroy the documents containing the inadvertently disclosed information and directed the NYPD to produce properly redacted versions of the documents. The court did, however, allow the Center to continue using and disseminating information it had learned from the unredacted documents, with one limitation: the Center could not disclose that the documents were the source of the information that should have been redacted.
The Center appealed, and the First Department affirmed. It rejected the Center’s argument that the portion of the order restricting the Center from disclosing the source of the information flouted the First Amendment’s ban on prior restraints of speech. Relying on the U.S. Supreme Court’s decision in Seattle Times Co. v. Rhinehart, the First Department observed that “a court may restrict a litigant’s use of information obtained through litigation as long as the restriction furthers an important or substantial governmental interest unrelated to the suppression of expression.” The court then held that the NYPD “had a substantial government interest in preventing the inadvertent disclosure of records.” The court also held that Supreme Court’s protective order was “narrowly tailored in expressly allowing [the Center] to disseminate any information it had gleaned from the materials at issue, and requiring [the NYPD] to provide [the Center] with” properly redacted records.
The First Department granted leave to appeal.