4 ms·

NYPD rejects request for its freedom of information handbook

76 points by frostmatthew 13y ago

ck2 13y ago
How the heck can a democratic state government have secret documents from its own people?
- pekk 13y 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.
  - greenyoda 13y 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.
  - ck2 13y 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.
- greenyoda 13y 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 13y 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.
  - ck2 13y 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.
    - gizmo686 13y ago
      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.
- rapala 13y 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?
  - ck2 13y 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.
    - pessimizer 13y ago
      Top secret legal interpretations that nullify other laws still on the books are the new black.
flibertgibit 13y 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 13y 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 13y 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/deBlasioFOILReport_0.pdf http://advocate.nyc.gov/sites/advocate.nyc.gov/files/deBlasi...
DannyBee 13y 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.
- gizmo686 13y 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.
  - DannyBee 13y 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.
    - gizmo686 13y ago
      >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).
gizmo686 13y 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.
- javajosh 13y 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.
  - 13y ago
jnsaff2 13y 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.

76 points by frostmatthew 13y ago

ck2 13y ago

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

pekk 13y 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.
- greenyoda 13y 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.
- ck2 13y 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.
greenyoda 13y 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 13y 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.
- ck2 13y 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.
  - gizmo686 13y ago
    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.
rapala 13y 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?
- ck2 13y 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.
  - pessimizer 13y ago
    Top secret legal interpretations that nullify other laws still on the books are the new black.

flibertgibit 13y 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 13y 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 13y 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/deBlasioFOILReport_0.pdf http://advocate.nyc.gov/sites/advocate.nyc.gov/files/deBlasi...

DannyBee 13y 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.

gizmo686 13y 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.
- DannyBee 13y 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.
  - gizmo686 13y ago
    >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).

gizmo686 13y 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.

javajosh 13y 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.
- 13y ago

jnsaff2 13y 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.