It was hard to feign much surprise last month when the New York Times slapped New York’s finest with a lawsuit, accusing the department of habitually withholding information and flouting government transparency laws. In fact, as any reporter would certainly know, one of the city’s toughest agencies to crack for information — even information it’s obliged, by law, to cough up — might be New York’s boys in blue.
Freedom of Information Law requests (or “FOIL requests,” as they’re known) are supposed to be a useful tool for the public; immigrants applying for citizenship use them to collect documentation, inmates use them to prove their innocence, reporters use them to uncover wrongdoing, and advocacy groups have used them to gather a breadth of data on subjects like political surveillance, school performance, racial profiling and homelessness.
But ask anyone who’s filed a FOIL, and they’ll tell you that prying loose information isn’t always so simple. Especially, it seems, from the NYPD.
“In general,” said Leonard Levitt, a longtime police reporter at Newsday who now writes the online NYPD Confidential, “it’s virtually impossible to get anything from them through FOIL requests.”
In New York, anyone can use the FOIL to request pretty much anything from most government agencies except courts and the state legislature. That includes e-mails, payroll information, reports — you name it. Barring some specific records that the law says are exempt from disclosure (documents that might endanger someone’s safety or violate their privacy, for instance), the assumption is: it’s public.
When a request is filed, government agencies have five days to acknowledge it. They then have 20 days to decide whether to deny access or hand the record over. If the agency can’t make up its mind within those 20 days, it must give you a specific date by which it will make a decision and if it still fails to comply in time, you get 30 days to bring an appeal to an agency supervisor. If your appeal fails, you have one option left: take ’em to court.
But when a government body is stingy with information, it’s not uncommon — even in the face of litigation — for it to drag out the FOIL process as long as possible.
“The one thing that’s consistent across all of the states’ [open records laws],” said David Ardia, director of the Citizen Media Law Project at Harvard Law School’s Berkman Center for Internet and Society, “is the fact that they are rarely complied with.”
“The exception is an agency that meets its obligations within the time period called for by the relevant open records statute,” he said. “In fact, most government agencies know that they can get away with dragging their feet or outright ignore the requirements with very little risk to them.”
Donna Lieberman, who’s led FOIL suits seeking city data on stops-and-frisks, graduation rates and arrests in public schools, is the executive director for the New York Civil Liberties Union. And she said the city’s stonewalling is one experience she’s quite familiar with.
“They say ‘You’ll get an answer by X date,’ and then they send you another letter prior to X date saying, ‘We’ll do it in 30 days,'” Lieberman said. “And this goes on and for us what it means is we don’t get the information in a timely fashion. For organizations like us, we start working on something, we need information and by the time we get it, it’s stale or our staff has gone onto other things.”
Lieberman wouldn’t say how many requests the NYCLU has filed with the city or which have been denied, delayed, or pushed into litigation. The mayor’s office couldn’t provide any citywide numbers, but for its part, the NYPD’s legal bureau, which handles the NYPD’s FOIL requests, said it receives almost 7,000 requests each year. By comparison, the mayor’s office has only received 38 FOIL requests this year.
As an informal rule-of-thumb, the legal bureau’s FOIL Unit also estimates it needs 120 days to complete any given request.
“It’s just impossible to respond and complete a request within five to ten business days,” one legal bureau official said. “So we say, ‘Let’s do it in 120 days’ and if we can get it out sooner, we absolutely get it out sooner.”
Part of the problem, the police department said, is that its records are not centralized.
“Simple documents, like an arrest report,” they “try to get out right away.” But other cases are so complex that they bounce around separate units within the department, leaving FOIL officers and requesters to languish while they wait for a response.
Robert Freeman, executive director for the Committee on Open Government, a state ombudsmen that issues guidance on FOIL issues, said troubled record-keeping is no excuse.
“The absence of centralization and associated records management issues are real problems,” Freeman said, “and they likely signify other issues that preclude the NYPD from functioning effectively. If it can take up to 120 days to locate records in responding to FOIL requests, does it take equally long to locate records in relation to the investigation of crimes?”
Ardia said new technology could, in theory, streamline the disclosure process, which he pairs with an approach that considers documents’ public nature when they’re created, not one that waits until they’re requested.
“You could say the reason why there’s such a cost in reviewing [information] now is that when information is created and stored within the government, it’s not done so in a way that’s amenable to disclosure,” he said. “The system we have in place is not amenable to doing that. That’s not a reason why it can’t be done, that simply points to the fact that if we were to go with that approach, we would have to re-think very deep into government about how records are created.”
The police department said it doesn’t keep sophisticated track of requests, so it’s hard to objectively gauge its response performance. And because the law doesn’t require government agencies to keep or publish FOIL statistics, it’s impossible — except, ironically, by filing an official request — to find out the number and disposition of requests the city handles. (An inquiry to the police department’s press office went unanswered.)
But local officials are trying, in part, to address this. Earlier this year, city public advocate Bill de Blasio introduced Intro. 0227-2010, a city charter amendment that, if passed by the city council, would force mayoral agencies “to issue monthly reports to the Council and the Public Advocate” on FOIL compliance.
The new law would require agencies to report the number of requests and appeals they receive, grant, and deny; as well as reasons for denial, how long they take to process requests and how often they wind up in court.
“The hope,” said de Blasio spokesman Matt Wing, “is if the public can see how agencies are responding to FOIL requests and that’s sort of out there in a public way, it basically creates a standard of having to live up to being as responsible as possible. It puts more pressure on them to respond more completely and in a timely manner.”
If passed, the law would have gone into effect this month, but it’s been waiting for a hearing by the council’s committee on governmental operations since it was introduced in May. (Councilwoman Gale Brewer, who chairs that committee, did not return calls seeking comment.)
Meanwhile, agencies’ penchant for delay and a lack of proper accountability mechanisms have been enough to demoralize FOIL requesters, including those who rely on this information most: reporters.
Which, some say, might be the point.
“Sadly,” Lieberman said, “I think that the effort to control what information gets out is a not insignificant factor.”
That “effort” gets a boost when agencies realize that information is a commodity with a short shelf life. A fact that, burdened with dwindling newsroom budgets and a shorter news cycle doesn’t bode well for government transparency. Or public interest journalism.
“We are clearly seeing a decline and a reduced willingness of many journalism organizations to have those fights,” Ardia said. “They just don’t have the resources to do it.”
“They’re cutting back on beat reporters and cutting back on the money they make available to lawyers to bring these kinds of cases,” he said. “So we’re going to see some big, growing gaps in public knowledge about the function of its government.”
Even an official within the police department’s legal bureau said that, except on national and celebrity stories, it doesn’t get many media requests these days.
“Prisoners, reporters, attorneys, attorneys, attorneys and the public,” the official said. But those media requests were “not much” when compared to the other requesters’, he said.
Levitt, who covered police for a decade at Newsday, said he’s seen the dynamic in New York’s press corps shift already.
“The [New York Times] is really the only paper now that’s pursuing this [FOIL] stuff, but they’re limited,” he said. “The Post never really did this kind of stuff, and the Daily News is really the greatest disappointment because they really used to have an investigative tradition and they have totally — and it’s not the reporters, it’s the editors — there’s just no push to do that.”
One of those papers’ police reporters, who asked not to be identified by name or affiliation, admitted to the Voice that there were “probably a lot of stories” his paper was missing because, “we’re not as adept in that area of inquiry.”
When initially contacted for comment on this story, a Times spokeswoman said it had not “sued over any NYPD FOIL issues in the past year (or anytime recently).”
But five days later, the paper’s lawyers slapped the city with a lawsuit over four requests involving gun permits; hate crimes; crime reports; and, yes, the tracking and disposition of FOIL requests themselves. In its own story about the suit, a lawyer for the paper said they’d “become increasingly concerned over the last two years about a growing lack of transparency at the NYPD.”
While reps for the Post and Daily News had little to offer on the subject (the Post declined to comment altogether; the Daily News said it does not track individual reporters’ requests), a new report by the Committee on Open Government might shed some light on how gung-ho other media organizations actually are in chasing these issues today.
In 2010, the COOG responded to 414 requests for written opinions statewide. Ninety-one percent of those were from members of the public or local government officials, but only 7 percent came from members of the news media. Of the 4,185 phone calls it handled, the majority of inquiries, 71 percent, once again came from average joes and government officials while only 17 percent came from reporters.
But Ardia said the COOG numbers don’t necessarily indicate an unwillingness to chase these stories. Reporters, he said, might simply need less help dealing with FOILs than most people.
“It may be that media organizations are capable of engaging in self-help in this area that the average citizen isn’t likely to do,” he said. “One of the most valuable tools in a reporter’s arsenal is the ability to embarrass an agency, so sometimes that actually gives you leverage that the average person doesn’t have.”