NYPD rejects request for its freedom of information handbook(muckrock.com)
muckrock.com
NYPD rejects request for its freedom of information handbook
https://www.muckrock.com/news/archives/2014/feb/14/nypd-rejects-foil-handbook-request/
30 comments
What you say seems reasonable. I think their still is the question of the legal risks of disclosing it, even if they are legally in the right. For example, it does open them up to a (likely easily winnable) lawsuit, and having the high level policy of 'no attorney work gets disclosed' seems like a generally safe thing to do.
" I think their still is the question of the legal risks of disclosing it, even if they are legally in the right."
Errr,the law requires they disclose it.
"and having the high level policy of 'no attorney work gets disclosed' seems like a generally safe thing to do."
Actually, many litigants have been heavily sanctioned for this kind of conduct (it used to be standard practice to cc attorneys on random shit and then claim privilege).
It's not generally safe, it's just a great way to piss off a judge.
Errr,the law requires they disclose it.
"and having the high level policy of 'no attorney work gets disclosed' seems like a generally safe thing to do."
Actually, many litigants have been heavily sanctioned for this kind of conduct (it used to be standard practice to cc attorneys on random shit and then claim privilege).
It's not generally safe, it's just a great way to piss off a judge.
>Errr,the law requires they disclose it.
If you think so, take it to court (as is being done in this case). It is quite possible that when they think about it, they will agree with you. Of course, now that they are in court they are "obligated" to fight it somewhat (or admit they were wrong).
If you think so, take it to court (as is being done in this case). It is quite possible that when they think about it, they will agree with you. Of course, now that they are in court they are "obligated" to fight it somewhat (or admit they were wrong).
"If you think so, take it to court (as is being done in this case). "
I think you are entirely missing the point. You shouldn't have to. This isn't even a close case. It's not even a case.
Also, this one hasn't been taken to court yet, just appealed administratively, since you must exhaust all administrative remedies before you can bring a court action in most cases.
"It is quite possible that when they think about it, they will agree with you. "
Who is they?
I think you are entirely missing the point. You shouldn't have to. This isn't even a close case. It's not even a case.
Also, this one hasn't been taken to court yet, just appealed administratively, since you must exhaust all administrative remedies before you can bring a court action in most cases.
"It is quite possible that when they think about it, they will agree with you. "
Who is they?
You seem to be intentionally obtuse, implying that "the system is working". The existence of the possibility of a remedy does not justify obstructionist behavior. E.g. just because you can take me to court to get me to pay a bill doesn't give me permission to refuse to pay my bills, saying "so sue me" to everyone I owe money to.
So on general principle, the NYPD says "no" to everything, and forces you to appeal, and then forces you to take them to court.
This is not okay. In fact, it's not even close to okay. Governmental apparatus exists at the whim of the people, and when it places it's interests in opposition to ours, forcing us to jump through expensive, time-consuming hoops to extract even the smallest amount of compliance with the law, there is something deeply wrong with the organization at the highest levels. Evidence? The police chief should be yelling at someone about this, and making a public apology for what is clearly absurd and unsupportable stone-walling. The fact that he remains silent implies his complicity. (But then again, what do you expect from someone who condones and expands the appalling stop-and-frisk policy?)
So on general principle, the NYPD says "no" to everything, and forces you to appeal, and then forces you to take them to court.
This is not okay. In fact, it's not even close to okay. Governmental apparatus exists at the whim of the people, and when it places it's interests in opposition to ours, forcing us to jump through expensive, time-consuming hoops to extract even the smallest amount of compliance with the law, there is something deeply wrong with the organization at the highest levels. Evidence? The police chief should be yelling at someone about this, and making a public apology for what is clearly absurd and unsupportable stone-walling. The fact that he remains silent implies his complicity. (But then again, what do you expect from someone who condones and expands the appalling stop-and-frisk policy?)
Although it is made clear in the letter itself, this is not simply a case of the NYPD not disclosing the document, rather the (laywers of the) NYPD are saying that they are legally prohibited from disclosing these documents due to attorney client privilege. Because they are legally prohibited from disclosing these documents, they are exempt from being required to disclose them under the FOIA.
They could wave their right to attorney client privledge, but that would likely require the consent of every intended recipient of the document, which is a lot of work, and still exposes the NYPD to a large amount of legal risk relative to the risk of not disclosing the document.
This seems like much more of a case of lawyers being lawyers, and wanting to avoid unnecessary legal risk and costs, then any attempt at not being transparent.
EDIT: I am not a laywer, feel free to fact check and correct any statement I made.
They could wave their right to attorney client privledge, but that would likely require the consent of every intended recipient of the document, which is a lot of work, and still exposes the NYPD to a large amount of legal risk relative to the risk of not disclosing the document.
This seems like much more of a case of lawyers being lawyers, and wanting to avoid unnecessary legal risk and costs, then any attempt at not being transparent.
EDIT: I am not a laywer, feel free to fact check and correct any statement I made.
"NYPD are saying that they are legally prohibited from disclosing these documents due to attorney client privilege. Because they are legally prohibited from disclosing these documents, they are exempt from being required to disclose them under the FOIA."
I am a lawyer :)
This is false.
They are not legally prohibited from disclosing this, as they are also the client. They are also not claiming they are prohibited from disclosing it, contrary to what you say. They are claiming they are exempt from disclosing it, i.e. they claim do not have to disclose it, and aren't going to as a result.
They can certainly disclose it if they like. They may not want to, however, because it probably contains things they don't want others to see, probably in the area of "we are doing things we shouldn't be with FOIA requests". The last time the NYPD lost a lawsuit related to FOIA was about releasing records on how often they were profiling, which turned out to be "all the time".
"They could wave their right to attorney client privledge, but that would likely require the consent of every intended recipient of the document, which is a lot of work, and still exposes the NYPD to a large amount of legal risk relative to the risk of not disclosing the document."
This is also wrong.
1. It does not require consent from the intended recipients, only a single person authorized at the department (which would usually include the lawyer who wrote it, as well as the person who rejected this request, along with a cast of probably thousands who could authorize it).
Authorizing release of the document is not the issue here, and they don't claim otherwise. It is quite literally the job of the person who rejected it to authorize the release of these kinds of documents. They simply don't want to release it, because they incorrectly claim it falls into an exception that allows them to withhold it. See above.
2. It exposes the NYPD to no legal risk, unless they are already doing something illegal, and the document discloses that. If you believe otherwise, i'd love to see a single citation to law or case authority that makes you believe otherwise.
Additionally, they are not even claiming they can't release it
"This seems like much more of a case of lawyers being lawyers, and wanting to avoid unnecessary legal risk and costs, then any attempt at not being transparent."
Actually, it seems exactly the opposite, given the actual facts on the ground.
I am a lawyer :)
This is false.
They are not legally prohibited from disclosing this, as they are also the client. They are also not claiming they are prohibited from disclosing it, contrary to what you say. They are claiming they are exempt from disclosing it, i.e. they claim do not have to disclose it, and aren't going to as a result.
They can certainly disclose it if they like. They may not want to, however, because it probably contains things they don't want others to see, probably in the area of "we are doing things we shouldn't be with FOIA requests". The last time the NYPD lost a lawsuit related to FOIA was about releasing records on how often they were profiling, which turned out to be "all the time".
"They could wave their right to attorney client privledge, but that would likely require the consent of every intended recipient of the document, which is a lot of work, and still exposes the NYPD to a large amount of legal risk relative to the risk of not disclosing the document."
This is also wrong.
1. It does not require consent from the intended recipients, only a single person authorized at the department (which would usually include the lawyer who wrote it, as well as the person who rejected this request, along with a cast of probably thousands who could authorize it).
Authorizing release of the document is not the issue here, and they don't claim otherwise. It is quite literally the job of the person who rejected it to authorize the release of these kinds of documents. They simply don't want to release it, because they incorrectly claim it falls into an exception that allows them to withhold it. See above.
2. It exposes the NYPD to no legal risk, unless they are already doing something illegal, and the document discloses that. If you believe otherwise, i'd love to see a single citation to law or case authority that makes you believe otherwise.
Additionally, they are not even claiming they can't release it
"This seems like much more of a case of lawyers being lawyers, and wanting to avoid unnecessary legal risk and costs, then any attempt at not being transparent."
Actually, it seems exactly the opposite, given the actual facts on the ground.
I don't understand who's exposure would be increased if the documents were released. Would it open up the NYPD to more legal action if the public gained insight into it's official FOIA doctrine? If that is the case, so what? If there is grounds for action, then good. If there is no grounds for action, then such suits will be thrown out.
As for being prohibited by law from disclosing the documents, I don't understand that either. As the appeal letter states, just because a document is written by an attorney for an organization does not make it subject to that privilege. Indeed, if you accept this argument, then it would apply to a vast number of documents that would otherwise be legitimate FOIA targets.
What it looks like to me is that the NYPD has something to hide, and they are stone-walling the process, coming up with nonsense reasons to avoid being transparent. No doubt there is something embarrassing in that policy document that they don't want to get out; or they don't want to set a precedent that these kinds of documents are accessible by the public, because there are other such documents that would be embarrassing.
The message needs to be sent, loud and clear, to the NYPD: don't want to share? Too fucking bad. You work for the public, and if you don't get your act together we'll vote in a new mayor and chief of police that will shit-can and prosecute for gross malfeasance all of you lazy, corrupt fucks that are obstructing the public's right to information on the rules they are subjected to.
As for being prohibited by law from disclosing the documents, I don't understand that either. As the appeal letter states, just because a document is written by an attorney for an organization does not make it subject to that privilege. Indeed, if you accept this argument, then it would apply to a vast number of documents that would otherwise be legitimate FOIA targets.
What it looks like to me is that the NYPD has something to hide, and they are stone-walling the process, coming up with nonsense reasons to avoid being transparent. No doubt there is something embarrassing in that policy document that they don't want to get out; or they don't want to set a precedent that these kinds of documents are accessible by the public, because there are other such documents that would be embarrassing.
The message needs to be sent, loud and clear, to the NYPD: don't want to share? Too fucking bad. You work for the public, and if you don't get your act together we'll vote in a new mayor and chief of police that will shit-can and prosecute for gross malfeasance all of you lazy, corrupt fucks that are obstructing the public's right to information on the rules they are subjected to.
The concern would be that someone within the department could, in theory, sue because privileged documents got released. The more general theory is that releasing attorney documents, in general, is dangerous, and the safest option for the individual making this decision is to err on the side of caution and not release.
Their response seems like a stock response, I see no indication that they devoted the level of thought to this decision that would be necessary for the level of deception you are accusing them of.
Their response seems like a stock response, I see no indication that they devoted the level of thought to this decision that would be necessary for the level of deception you are accusing them of.
"The concern would be that someone within the department could, in theory, sue because privileged documents got released."
No, they can't. There is no claim they would be allowed to make here.
Don't take this the wrong way, but you keep making all sorts of claims about what their legal position, risks, etc are, with absolutely no basis to do so. If you are going to do this, could you please at least cite whatever authority is giving you these ideas in the first place? I'm not even sure where to begin, because, with all due respect, what you are saying is "not even wrong"
No, they can't. There is no claim they would be allowed to make here.
Don't take this the wrong way, but you keep making all sorts of claims about what their legal position, risks, etc are, with absolutely no basis to do so. If you are going to do this, could you please at least cite whatever authority is giving you these ideas in the first place? I'm not even sure where to begin, because, with all due respect, what you are saying is "not even wrong"
I did not intend my posts to be of the "here is what is actually going on" variety. My concern is that I have seen no attempt in the article or (at the time of my original posting) in the comments even addressing the possibility that this is non-malicious. As the article is making a claim it has a burden of proof that, in my opinion, it has not even come close to meeting.
As a direct response to my concerns, you have actually addressed some these fundamental concerns that should have been dealt with in the original article article allowing me, as an untrained lay-person in this matter, to take this case much more seriously.
I am still not convinced that this is an instance of policy and not individual incentives, but answering that would involve reasearch into many cases, their incentive structure, comparrisons to other groups, ETC, and would need to be written up into a long and in depth article which would get fewer readers and less invigorate the base as these shorter and less logically compelling pieces. I realize that this is a fundemental problem with any type of activism, and the only solution I know of is to call it out and hope that A) someone will provide the information in comments, B) authors will tend to include (or reference) more information in the original article, and C) other people will that these articles may not show what they think they do.
As a direct response to my concerns, you have actually addressed some these fundamental concerns that should have been dealt with in the original article article allowing me, as an untrained lay-person in this matter, to take this case much more seriously.
I am still not convinced that this is an instance of policy and not individual incentives, but answering that would involve reasearch into many cases, their incentive structure, comparrisons to other groups, ETC, and would need to be written up into a long and in depth article which would get fewer readers and less invigorate the base as these shorter and less logically compelling pieces. I realize that this is a fundemental problem with any type of activism, and the only solution I know of is to call it out and hope that A) someone will provide the information in comments, B) authors will tend to include (or reference) more information in the original article, and C) other people will that these articles may not show what they think they do.
" As the article is making a claim it has a burden of proof that, in my opinion, it has not even come close to meeting."
The NYPD has a long history of doing this, not only shown on this site, but others. It's actually quite bad.
Here's another few examples
http://motherboard.vice.com/blog/the-nypd-is-foia-proof,
http://www.huffingtonpost.com/2013/09/03/ap-nypd-matt-apuzzo...
etc
Muckrock has enough history requesting things from the NYPD that they are probably tired of writing up the same case of this maliciousness, again and again.
The NYPD has a long history of doing this, not only shown on this site, but others. It's actually quite bad.
Here's another few examples
http://motherboard.vice.com/blog/the-nypd-is-foia-proof,
http://www.huffingtonpost.com/2013/09/03/ap-nypd-matt-apuzzo...
etc
Muckrock has enough history requesting things from the NYPD that they are probably tired of writing up the same case of this maliciousness, again and again.
I have higher expectations of our public servants. These secretive, adversarial, stone-walling tactics have become standard practice, and there is no shortage of bullshit reasons to justify the behavior. Unfortunately, well-meaning citizens like you continue to trust the government, take them at their word, and accept their petty distinctions and self-serving rationalizations as a legitimate use of their power. It is not: it is pure obfuscation designed to resist any check, no matter how small, to their power.
It is disgusting, and it needs to stop.
If you disagree with this, then consider the following question: what if the NYPD had released their FOIA guidelines? Would you be posting your concerns that the release of that document opens up the NYPD to lawsuits from it's own employees? That's rhetorical, because of course you wouldn't because that's ridiculous.
It is disgusting, and it needs to stop.
If you disagree with this, then consider the following question: what if the NYPD had released their FOIA guidelines? Would you be posting your concerns that the release of that document opens up the NYPD to lawsuits from it's own employees? That's rhetorical, because of course you wouldn't because that's ridiculous.
To be clear, I think the NYPD is in the wrong hear, and am happy that they are being challenged on it and expect them to loose. My concern in this case is that if we do not understand the cause of the problem, then our attempts at a solution will be less effective.
>Would you be posting your concerns that the release of that document opens up the NYPD to lawsuits from it's own employees?
If I criticize their actions in this way, then I am suggesting that I know more about the situation then they do, which I do not. If I am defending their actions, all I am saying is that their is the possibility that their actions are reasonable, given what they know about the situation.
I absolutely do not trust the government, but most of my distrust comes from a concern of their competence, or individual employees acting in their own interest to my detriment (such as not admitting they made a mistake). I do have some concerns high level policies they might have, but those are relatively minor concerns.
To clarify this point, suppose this secrecy is deliberate policy. We need to change leadership to people who follow a policy of transparency, give time for changes to trickle down into the culture, then problem solved.
However, if the problem is bureaucratic, we need to change the incentive structure so that the individual making the decision to disclose a particular document has a personal reason to do so. A good first step to this would be specific protections for individuals if they release something that results in harm to their employers/clients/ETC. We also need to increase the cost of not disclosing documents, so that they have a reason to disclose them. For example, we could require the person making the decision could require an active objection from the concerned party in order to withhold the content. Of course, all of these suggestions are incredibly rough and require much more careful consideration before being implemented.
Having said that, I do see the appeal of thinking we are dealing with all powerful organizations, free from the bureaucratic nightmares that plague us mere mortals.
>Would you be posting your concerns that the release of that document opens up the NYPD to lawsuits from it's own employees?
If I criticize their actions in this way, then I am suggesting that I know more about the situation then they do, which I do not. If I am defending their actions, all I am saying is that their is the possibility that their actions are reasonable, given what they know about the situation.
I absolutely do not trust the government, but most of my distrust comes from a concern of their competence, or individual employees acting in their own interest to my detriment (such as not admitting they made a mistake). I do have some concerns high level policies they might have, but those are relatively minor concerns.
To clarify this point, suppose this secrecy is deliberate policy. We need to change leadership to people who follow a policy of transparency, give time for changes to trickle down into the culture, then problem solved.
However, if the problem is bureaucratic, we need to change the incentive structure so that the individual making the decision to disclose a particular document has a personal reason to do so. A good first step to this would be specific protections for individuals if they release something that results in harm to their employers/clients/ETC. We also need to increase the cost of not disclosing documents, so that they have a reason to disclose them. For example, we could require the person making the decision could require an active objection from the concerned party in order to withhold the content. Of course, all of these suggestions are incredibly rough and require much more careful consideration before being implemented.
Having said that, I do see the appeal of thinking we are dealing with all powerful organizations, free from the bureaucratic nightmares that plague us mere mortals.
How the heck can a democratic state government have secret documents from its own people?
And, for that matter, why should a government agency be protected by "attorney client privilege"? If an employee of the NYPD were to retain an attorney with his own money, then their communications should be privileged. But if a government agency that's funded by taxpayers does something it might need a lawyer to protect it from, it should be public knowledge.
Not every thing an elected official does becomes a public document. Democracy does not mean that every little thing is subjected to a public vote.
We're not talking about a "little thing" here. We're talking about a document that defines the official policies of the NYPD being kept secret.
Doesn't have to be a vote but there has to be an accounting.
We're talking about sunshine vs stasi mentality.
It's like having secret laws we can't know about but are subject to penalty, democracy is not supposed to work like that.
We're talking about sunshine vs stasi mentality.
It's like having secret laws we can't know about but are subject to penalty, democracy is not supposed to work like that.
For secrecy and privacy of course. Do you want to hold the list of undercover operatives in hostile countries? How about making public a list of people who have received social protection? I don't know about the system in USA but how would you like if a report of your earnings could be requested from the IRS?
Two different things. You are an individual and have privacy. The state cannot make private, secret laws. The IRS cannot have unlisted regulations that you have to obey without knowing what they are.
Top secret legal interpretations that nullify other laws still on the books are the new black.
Although I agree that in this case, the NYPD is wrong, I think that governments can keep certain things secret for the good of their people.
But then you cannot call such a government a democracy.
People making and enforcing laws do not get to arbitrarily decide to make something secret because they say so since they are the ones who made the laws in the first place. That's not democracy.
People making and enforcing laws do not get to arbitrarily decide to make something secret because they say so since they are the ones who made the laws in the first place. That's not democracy.
There is a reason we call the USA a representative democracy, instead of a direct democracy. The government can keep secrets from the general public, because the public elects individuals to make decisions on their behalf, and these individuals to have access. There are plenty of concerns over how well our representatives do represent our own interests, but in concept there is no reason that the fact that our represantatives know more then us invalidates anything.
The first rule of Fight Club is: You do not talk about Fight Club. The second rule of Fight Club is: You do not talk about Fight Club.
There probably is no FOIA guide there or in many parts of government. It isn't a big enough priority to spend time coming up with a process.
Their response implies indicates that it does exist:
"This request is denied because the records you requested were prepared by an NYPD attorney..."
"This request is denied because the records you requested were prepared by an NYPD attorney..."
The NYPD gets thousands of requests. NYC get, on these figures, at least 40,000 a year. Known requests to the NYPD in a shortened period were ~1900.
http://advocate.nyc.gov/sites/advocate.nyc.gov/files/deBlasi...
http://advocate.nyc.gov/sites/advocate.nyc.gov/files/deBlasi...
Part of this rejection completely misstates what is attorney work product privileged, and claims that this is somehow attorney work product, and thus exempt.
Attorney work product privilege only covers things prepared during or in anticipation of discovery or litigation. One would hope their FOIA handbook was not prepared under these circumstances.
On the attorney-client privilege claim, unless it actually made for the purpose of securing legal advice (rather than policy advice), it wouldn't be privileged. It also wouldn't be privileged if it was disclosed, ever, to anyone other than the client.
I have trouble believing this document would meet these requirements.