NYPD Wants $42,000 To Turn Over Documents Related To Discharges Of Officers' Firearms

from the The-Man-sticks-it-to-the-public...-again dept

The NYPD is jerking around FOIL (Freedom of Information Law) requesters again. Usually, the NYPD just pretends it’s the CIA (somewhat justified, considering its hiring of former government spooks) and claims everything is so very SECRET it couldn’t possibly be edged out between the multiple exemptions it cites in its refusals.

It tried the usual deflectionary tactics with Shawn Musgrave, who’s seeking the department’s mandatory reports on firearms discharges by its officers. After five months of promising to get to his request, the NYPD finally sent out a response letter denying him access to every document he requested, citing a plethora of FOIL exemptions.

While the NYPD may be (purposefully) terrible at remembering pertinent FOIL-related court decisions, Musgrave isn’t. He quickly responded with this:

The NYPD FOIL office has not claimed inability to find the requested 24-hour and 90-day reports following firearm discharges for 2010 through 2014. Rather, the NYPD errantly claims that these documents are exempt from release under FOIL for a variety of reasons.

All of the cited exemptions are categorically incorrect. No less an authority than the Supreme Court of the State of New York has ruled as much in a case that is virtually identical to the present request.

In January 2009, the New York Civil Liberties Union submitted a FOIL request to the NYPD for 24-hour and 90-day shooting incident reports from 1997 through 2008 (see http://www.nyclu.org/case/nyclu-v-nypd-seeking-access-police-shooting-incident-reports). As you can see from my original request, these are precisely the same documents I seek.

The NYPD rejected that request, claiming that such reports were exempt from disclosure pursuant to:
1) Public Officers Law 87(2)(a), New York Civil Rights Law 50-a(1);
2) Public Officers Law 87(2)(b) and 89(2);
3) Public Officers Law 87(2)(e)(i-iv);
4) Public Officers Law 87(2)(f);
5) Public Officers Law 87(2)(g);

Conveniently, these are the same exemptions by which the NYPD FOIL office has rejected my present request. I will allow Judge Goodman’s ruling in the NYCLU case (see http://www.nyclu.org/files/releases/NYCLU%20v%20%20NYPD%20Shooting%20FOIL%20decision%202-14-11.pdf) to address the invalidity of the NYPD’s response in my own case:

“The issue is whether the 24-hour and 90-day firearms discharge incident reports are categorically exempt from disclosure under FOIL. After a careful review of the NYPD Firearms Discharge Manual containing the 28 section form for the 24-hour and 90-day firearms discharge incident report, the Court finds that these reports are not categorically exempt.”

Having been reminded that the Supreme Court of its home state had previously said it couldn’t do the very thing it was attempting to do, the NYPD’s FOIL team regrouped. A month later it finally admitted Musgrave’s appeal had been accepted. Three weeks after that, it told him it could have all the documents the state’s highest court had declared any citizen could access… for the price of a late model SUV.

It is estimated that the copying fee for preparation of the requested copies, including redaction and copying thereof, is $42,000. Preparation of the copies will commence upon receipt of payment of in the form of a check or money order in the amount of $42,000, payable to New York City Police Department.

The response doesn’t explain how the NYPD reached this dollar amount. It simply states that it is the dollar amount the NYPD will be charging and that nothing will be done until the money is in its hands.

Having failed to discourage Musgrave with its bogus exemption ploy, the NYPD has gone for another favorite technique of open records request-resistant agencies: pricing requesters out of the market. Musgrave will certainly be appealing this estimate, but until forced to back down by higher authorities, the NYPD has successfully managed to evade yet another records request.

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Comments on “NYPD Wants $42,000 To Turn Over Documents Related To Discharges Of Officers' Firearms”

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That One Guy (profile) says:

Providing incentive

In addition to paying the court fines of those that are forced to sue to pry documents from what are supposedly public servants, I think they should also be forced to personally pay the difference between what they claim the one making the request needs to pay, and what the court says is reasonable.

So if they ask for $20,000 and the court finds that $1,000 is more reasonable, not only would they be forced to pay the court costs, whatever they are, they’d also be forced to personally hand over $19,000.

Give the police and government agencies some actual incentive not to pull stunts like this, and they’ll happen less often. So long as they can throw out insane amounts, when they’re not stonewalling requests for months on end, they’ll just keep doing so.

Anonymous Coward says:

Re: Providing incentive

The absurd amounts are really just a delaying tactic to make whatever was requested outdated and most likely inactionable by the time it’s released. I was thinking Elon Musk or someone could set up a big ol’ fund that quickly pays any stupid amount a government agency might throw at a FOIA requester, just so he/she can have the satisfaction of saying “Nice try. You’re not gonna sleaze your way outta this one.”

Anonymous Coward says:

Re: Re: Re: Providing incentive

Is there a way to both pay the fee and sue to get the money back? Or is paying it considered legally agreeing that it’s a fair price?

My brilliant ideas always have one tiny little flaw: they all wind up requiring the deus ex machina of a random helpful member of the ultra-wealthy. Of course, this actually works for the government, except that the deus ex machina becomes pecuniam ex tributum.

Quiet Lurcker says:

Incdentive to Behave

“You failed to respond to a FOIA request within the legally mandated thirty days. These gentlemen are here from the sheriff’s department with a court order to take you into custody. You’ll get to see a judge in, oh, two or three weeks. And these gentlemen over here are here with another order to impound your records and remove them to an alternate location where I’ll go through them at my leisure. I’ll give them back when I’m done. Have a nice day.”

That should take care of it.

Whatever (profile) says:

Something that is missing in all of this is the question of how many documents are involved here. If it’s 1000 pages, then $42 a page (including redaction and such) isn’t really off the chart.

That may be part of the problem of FOIA requests, which is if the “responsive set” is way too large or the required search too large, then the costs may be way off the charts. It’s a really complex problem.

Perhaps if we have a better idea of the size of the documents involved, we might have a better idea if the cost is too high or too low.

Dan (profile) says:

"Supreme Court"

No less an authority than the Supreme Court of the State of New York has ruled as much in a case that is virtually identical to the present request.

The “Supreme Court of the State of New York” is the trial-level court in that state; the highest court in New York is the Court of Appeals (the intermediate appellate court is the Supreme Court, Appellate Division). IOW, the “Supreme Court of the State of New York” isn’t a very high authority–this is a trial court decision, which isn’t really precedential, and they generally aren’t published anywhere.

It’s made somewhat higher in this case by the fact that it was a fairly-recent decision, against the same department (i.e., NYPD), involving the same requested materials, to which they asserted the same exemptions.

Anonymous Coward says:

Responding to several comments...

The dollar amount requested is quite high unless the number of documents is quite large. And all of us are just guessing right now. Based on the linked judgement the form for one incident has 28 sections (stated in judgement) with each section having a distinct purpose. Based on the section subject labels given in the judgement it appears that each section has it’s own page making a 28 page form. Given the nature of some of the section subject labels a section can easily command more than one page for the requested information.

Since these reports are about discharge of firearm they apply to any discharge, including those that don’t result in injury or death. I’m assuming that training, practice, and instructional purposes are exempt. (If they’re not – there’s your problem!) Typically we only hear about office discharge of firearm that results in injury or death. Most police departments prohibit “warning shots” but that hasn’t stopped a few officers from shooting tires of cars leaving the scene.

And if NY is like my area such forms are per officer, not per incident. So if ten officers shoot one suspect, that’s ten 28 page+ reports that have to be filled out. (And in my area the chain of command would have something to say if ten officers really did shoot one suspect even if the shoot was justified.)

Derek Kerton (profile) says:

Coffee, Man, Coffee

“it told him he could have all the documents… for the price of a late model SUV.”

Tim, please re-frame this comparison in terms of “servings of Starbucks Coffee”, which is now accepted as the gold standard of comparisons for expenditures. Look how well this reads:

“he could have the documents…for the simple expense of just 10,000 cups of coffee.”

Oh! Now I get it, that’s an egregious fee!

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