When NYPD Chief Ray Kelly said "privacy was off the table" following the Boston bombing, we all knew this was a one-way "exchange." It was always going to be average citizens losing out on their privacy. The NYPD would remain unaffected and continue to operate the way it has for years: behind the thin thick blue line of opacity.
Salon's CJ Ciaramella takes a detailed look at the NYPD's track record on Freedom of Information requests. The results are unsurprising. The public entities that demand the most from their constituents are often the most reluctant to give anything back.
The city’s Public Advocate Bill de Blasio, who is running for mayor, recently released a report asserting that a third of all Freedom of Information records requests to the police department were ignored. The numbers are no surprise to journalists who cover the department, such as Leonard Levitt, a veteran cops reporter who now writes at NYPD Confidential.
“All I can tell you is that the NYPD does whatever it wants to regarding FOI requests,” Levitt said. “Which means they never turn anything over, at least not to me. The only time they did respond was after I got the NY Civil Liberties Union involved.”
Levitt's case isn't unique. Others have run into the same officious stonewalling and found it often takes a lawsuit (or the threat of one) to shake anything loose. All Levitt was looking for was Ray Kelly's daily calendar. The department cited "security reasons" when rejecting his request. By this logic, protecting Ray Kelly is more important than protecting the President of the United States, whose calendar is public.
What isn't rejected outright is simply ignored. Those making the requests are left to decide whether the requested information is worth the time and expense of a lawsuit. The NYCLU has found itself in court time and time again in attempts to pry info loose from the NYPD's grip.
Ciaramella had his own experience with the NYPD's FOI recalcitrance when he sought access to gun discharge reports that might shed some light on the "hail of gunfire" unleashed by the NYPD in the course of bringing down the Empire State Building shooter.
Back in October 2012, this reporter submitted a public records request for the discharge reports filed by NYPD officers over the previous year.
I filed the public records request on Oct. 1. And then waited. On Jan. 11, I received this response:
In regard to your request, for all weapons discharge reports filled [sic] by officers between January 1, 2012 and September 26, 2012, I must deny access to these records on the basis of Public Officers Law section 87 (2)(g) and 87 (2)(e) as such records/information, if disclosed would reveal criminal investigative techniques or procedures, and or are intra-agency materials. Furthermore, these records are also exempt from disclosure as these records on the basis of Public Officers Law section 87 (2)(e) and Public Officers Law 87 (2)(a) in that such records consist of personell records of a Police Officer and are therefore exempt from disclosure under the provisions of Civil Rights Law section 50-a.
Now, stop and consider this for a second. The NYPD said the public interest of how, when and why its officers use deadly force against the citizens it’s sworn to protect is outweighed by the need to protect the privacy of those same officers. Not only that, the public interest was outweighed by the need to protect its investigative techniques.
This is par for the course and not unique to the NYPD. Police forces all over the nation (and the word, for that matter) are notorious for protecting their own. This insular attitude tends to result in the sort of ridiculous arguments detailed above. Protecting officers from public scrutiny
always outweighs the public interest because it's the "home team" making the call.
But this reflexive "cops-first" rejection of Ciaramella's request was particularly brash, seeing as it completely contradicted a previous judicial ruling.
A New York judge ruled two years ago — in response to a NYCLU lawsuit, naturally — that discharge reports are subject to disclosure, do not violate officers’ privacy and do not compromise the department’s investigative techniques.
The NYPD at least tried a different tack with Ciaramella's next discharge report request, denying it because it was insufficiently descriptive of the files requested -- even though it was nearly identical to the previous filing.
This is a systemic problem. FOI requests are ignored, rejected or put on the back burner until someone gets a lawyer involved. If any answer arrives, it's usually months or years down the road and, in many cases, redacted to the point of uselessness.
New York's FOI problem goes all the way to the top. Bloomberg's office has spent significant amounts of time and money battling FOI requests as well.
ProPublica's Sergio Hernandez
spent nearly two years trying to obtain emails related to the 2010 appointment of Cathie Black as School Chancellor. (Black was a controversial pick who stepped into the position with no relevant experience after her predecessor suddenly resigned his post.)
When the emails were finally released last week, after a two-year legal battle, they revealed a desperate public relations campaign in which city officials tried to rally support from prominent women — including Oprah Winfrey, Gloria Steinem, Caroline Kennedy, and Bette Midler — to champion Black's appointment. (I'll admit: never in a million years did I expect my work to result in stories containing the sentence, "Ms. Winfrey couldn't be reached for comment.") In the end, the emails were amusing, slightly enlightening, but largely innocuous.
Hernandez points out that much has been made about the last-minute attempt to persuade female celebrities to show their support for the new chancellor, but much less ink has been spilled questioning why the city fought this request for so long,
racking up a total of 180 staff hours and costs of over $25,000.
In the very limited defense of the NYPD, all FOI requests are funneled through a single office. This inefficient design can partially be blamed for the extensive delays. But it doesn't excuse the general attitude that citizens need to be an open book while those in charge continue to operate in near opacity. And the inequity keeps getting worse, according to Robert Freeman, executive director of the NY State Commission on Open Government.
“I’ve been here since 1974,” Freeman said. “The track record of the police department, particularly in the last decade, indicates in so many instances a failure to give effect to the spirit and letter of the freedom of information law."
“I look back at various mayoral administrations, and my feeling is that there was more of an intent to comply with the law in the era of Mayor [Ed] Koch than there has been since,” Freeman continued. “My sense has been that the downward slope began in Giuliani’s administration.”
There's little hope of any immediate change. Entities like the two discussed are naturally resistant to transparency and sudden movement. The fact that the NYPD and Mayor Bloomberg have formed a
mutual admiration society over the years indicates that it will remain "business as usual" until a mayor willing to stand up to the police department (and stand up
for his constituents) is elected. The last two office holders have been more than happy to indulge the PD's excesses, all the while further isolating themselves from the demands of transparency laws and the people they're supposed to be serving.
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