The NYPD has a dodgy history with the Freedom of Information Act. According to reporter Sean Musgrave, the department tends to simply ignore any requests for disclosure it receives from journalists, despite being required by law to honor them. As Musgrave points out, even the NSA has a better FOIA record.
To make sense of the NYPD’s murky FOIA policy, Musgraves did the logical thing: he filed a FOIA request. Specifically, he asked to see the department’s manual for dealing with FOIA, in hopes of gaining a better understanding of how it internally justifies keeping everything under such tight wraps. Predictably, that request was denied.
As Musgrave writes on Muckrock, the department argued that the manual constitutes “”privileged attorney-client work-product.”
In his appeal rejection letter, Mr. David cites two statutes that bar disclosure of attorney-client communications. He argues that the records I requested “reflect confidential communications between members of the FOIL unit and their attorneys in the context of the providing of legal advice concerning the meaning and requirements of the Freedom of Information law.” He further suggests that “preparation of these records called upon attorneys to apply the skills and talents of an attorney, making these records attorney work product.”
As I wrote in my appeal, I have no doubt that a team of lawyers drafted NYPD’s transparency training materials and that they applied every ounce of barrister skill they possess. I hope such qualified individuals would be charged with that task. However, that a lawyer reviewed or even drafted these documents does not make them exempt from disclosure.
I haven’t requested NYPD’s case notes for FOIL litigation, or strategy memos for how to respond to a particular request. I’m after the handbook that delineates generally which documents to disclose to the public, and which to withhold.
Handbooks and training materials hardly qualify as “confidential communications,” particularly when the subject matter is transparency itself.
The department’s refusal to let the public see documents that ostensibly explain why it refuses to let the public see its documents is dripping in irony, especially when considering Commissioner Bill Bratton’s supposed commitment to transparency.
“There should be no secrets in the NYPD,” Bratton said last month. “We are going to do more to open up the organization, to make it more inclusive, to make our information more readily available to the public, and to try and format it in a way that is more easily retrievable.”