The NYPD hasn’t had the best track record when it comes to fulfilling requests under New York’s Freedom of Information Law. Demands for NYPD documents under FOIL — which is supposed to make accessing public information simple and relatively quick — routinely lead to lawsuits and long delays.
But anyone who’s been frustrated by a slow NYPD response will be gratified to know that they’re not completely crazy. As it turns out, the NYPD’s own training manual has — for years — had the FOIL law wrong. A mistake tucked into the department’s “patrol guide” incorrectly states that the NYPD has ten days to respond to FOIL requests. The language of the statute itself requires a response in half that time.
The discrepancy emerged as the result of a FOIL request filed by a reporter at MuckRock, a request which took months to fulfill, and resulted in what seemed like the kind of spiraling whirlpool of irony that only a government agency is capable of generating.
Since late last year, MuckRock reporter Shawn Musgrave had been trying to get the NYPD to release “any manual, training reference, or other guide” explaining how the department processes freedom of information requests. The cops had refused the request though, arguing — with a deeply symbolic bit of circular logic — that the freedom of information procedures themselves weren’t subject to New York’s Freedom of Information Law.
Musgrave kept at it, filing an appeal challenging what he considered a ridiculous legal argument. Eventually the department changed its tune; they weren’t refusing to release the manual, he was told. In fact, no manual existed at all.
FOIL shenanigans are an unfortunate fact of life for reporters, and the department’s denial could have been the end of it. But as both a news site and an open government advocacy group, MuckRock is the kind of outfit that follows up on FOIL requests pretty doggedly.
“Part of the reason we’re pushing this story so far is because this is entirely symbolic of how NYPD handles every FOIL request,” Musgrave says of the NYPD’s notoriously slow and piecemeal responses under the state’s law.
After half a dozen letters between Musgrave and NYPD lawyers, Musgrave finally decided to try a different tactic, requesting the entirety of the NYPD’s patrol guide, basically a handbook for cops detailing all kinds of policies and procedures.
And as it turned out, the patrol guide did indeed contain a section on FOIL, something Musgrave thinks should have been turned over right away on his first request. It’s relatively brief, but reminds officers of their requirements under the law. (Musgrave and MuckRock posted the relevant sections on their website, along with the letters that have been bouncing back and forth between the reporter and NYPD lawyers.)
Musgrave says his initial request should have been an easy one put to bed.
“This was more or less a softball request that they should have been able to fulfill right away,” Musgrave says, “but I essentially had to trick them into it.”
In the meantime, NYPD received jabs from outlets far and wide because, really, dashing off a post about the whole FOIL mobius strip was too good to pass up. FOIL policies exempt from FOIL? Blog and blog.
While it’s unusual for FOIL officers to talk publicly about individual requests, Jonathan David, the attorney charged with answering Musgrave’s letters, tells the Voice the whole thing was really a misunderstanding. In his view, the patrol guide, which contains pretty limited FOIL discussion, didn’t qualify as a training manual.
“I didn’t think the patrol guide was what he was looking for,” David tells the Voice. “It does reference the FOIL law, but it’s not really a how-to.”
There are hundreds of court decisions dealing with FOIL requests, David points out, and thousands of contingencies. The bare-bones outline contained in the guide, in David’s view, would have to be a lot more substantial to serve as training material. Besides, David says, the patrol guide has already been released before to other requestors, so there wouldn’t have been much sense in concealing it.
“I would have gladly disclosed the patrol guide … it’s already out there,” David says.
As for the mistake contained in the guide, the one that gives the Department twice as long to respond to requests as the law actually allows?
“I’ll have to inquire into that,” David says.
Bob Freeman, Director of the Committee on Open Government, a state agency that, among other things, helps reporters and others navigate FOIL, says blanket denials aren’t out of the ordinary for the NYPD.
“It’s what I call the Nancy Reagan approach: ‘just say no,'” Freeman says.
There are a long list of exceptions to FOIL — you can’t demand the identity of confidential informants, for example, or the medical records of a government employee — but too often, Freeman says, NYPD and other agencies cite exemptions that have nothing to do with the request at hand. It’s a way to buy time, and since FOIL requests are frequently made by journalists, it can also be a way to slow or kill a story.
“By the time it’s released, it may be less newsworthy,” Freeman says.