NYPD rejects request for its freedom of information handbook

https://www.muckrock.com/news/archives/2014/feb/14/nypd-rejects-foil-handbook-request/

by frostmatthew • 12 years ago

76 30 12 years ago

ck24• 12 years ago

How the heck can a democratic state government have secret documents from its own people?

pekk• 12 years ago

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.

greenyoda2• 12 years ago

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.

ck24• 12 years ago

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.

greenyoda2• 12 years ago

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.

tejaswiy• 12 years ago

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.

ck24• 12 years ago

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.

rapala• 12 years ago

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?

ck24• 12 years ago

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.

flibertgibit• 12 years ago

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.

justinpombrio• 12 years ago

Their response implies indicates that it does exist:

"This request is denied because the records you requested were prepared by an NYPD attorney..."

iamwithnail• 12 years ago

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...

DannyBee6• 12 years ago

His response is spot on, but he missed another point:

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.

gizmo6867• 12 years ago

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.

DannyBee6• 12 years ago

" 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.

gizmo6867• 12 years ago

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.

javajosh3• 12 years ago

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.

gizmo6867• 12 years ago

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.

DannyBee6• 12 years ago

"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.

jnsaff2• 12 years ago

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.

NYPD rejects request for its freedom of information handbook

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