Harassment charges dismissed against First Amendment auditor

Dan Warmus, operator of "Auditing Erie County", came out victorious in two recent court cases in Lockport.

LOCKPORT, N.Y. (WIVB) -- A judge dismissed harassment charges Thursday filed by four City of Lockport clerks against a First Amendment advocate who records in public places.

Lockport City Court Judge Thomas M. Dimillo agreed to dismiss the charges against Dan Warmus, who operates the YouTube channel "Auditing Erie County."

Warmus video records in government buildings to test public servants’ knowledge of the constitution and freedom of the press. Warmus, and others who do this line of work, call it "auditing."

The recordings are posted online, and Warmus often gives grades on the audit, depending on how public servants treat him and react to his presence.

But he is not always a welcomed guest.

In the Lockport incident, the clerks said his presence in the office caused them alarm and disrupted their work.

Warmus denied he harassed anyone.

He told News 4 Investigates that he went to the clerk's office to serve the city with an Article 78 lawsuit that sought police body-camera footage of a separate incident involving Warmus at a state labor office in Lockport.

As for the Article 78 lawsuit, Warmus agreed to settle with city officials.

Warmus told News 4 Investigates that he believed the harassment charges were in retaliation for his Freedom of Information law request, and subsequent Article 78 lawsuit, seeking police body camera footage.

Specifically, Warmus conducted an audit on Feb. 14 at the Department of Labor office in Lockport, and published the recording on his YouTube channel. During the audit, a Lockport police officer spoke with a clerk in an office.

Warmus filed a FOIL request for that officer's body-cam footage, but the city denied his request on the basis that the material was compiled for law enforcement purposes and may be relative to a pending law enforcement investigation, which is not a valid exemption. The exemption is for material compiled for law enforcement purposes, which if released, could interfere with a current law enforcement investigation.

Warmus appealed, but the city denied his appeal. His only recourse was the Article 78 at that point.

Brittanylee Penberthy, Warmus's attorney for the Article 78 case, said Lockport officials conceded the video should have been turned over to Warmus, but they said it was "accidentally" destroyed.

The city paid Warmus’s attorney fees. Penberthy said Warmus's goal through his auditing activities is to better inform public servants and elected leaders on personal rights.

"Mr. Warmus wasn't pursuing it for money," Penberthy wrote in an email.