

NYPD rejects request for its freedom of information handbook - frostmatthew
https://www.muckrock.com/news/archives/2014/feb/14/nypd-rejects-foil-handbook-request/

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DannyBee
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
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
" 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
>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).

~~~
DannyBee
"If you think so, take it to court (as is being done in this case). "

I think you are entirely missing the point. You shouldn't have to. This isn't
even a close case. It's not even a case.

Also, this one hasn't been taken to court yet, just appealed administratively,
since you must exhaust all administrative remedies before you can bring a
court action in most cases.

"It is quite possible that when they think about it, they will agree with you.
"

Who is they?

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gizmo686
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
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.

~~~
gizmo686
The concern would be that someone within the department could, in theory, sue
because privileged documents got released. The more general theory is that
releasing attorney documents, in general, is dangerous, and the safest option
for the individual making this decision is to err on the side of caution and
not release.

Their response seems like a stock response, I see no indication that they
devoted the level of thought to this decision that would be necessary for the
level of deception you are accusing them of.

~~~
DannyBee
"The concern would be that someone within the department could, in theory, sue
because privileged documents got released."

No, they can't. There is no claim they would be allowed to make here.

Don't take this the wrong way, but you keep making all sorts of claims about
what their legal position, risks, etc are, with absolutely no basis to do so.
If you are going to do this, could you please at least cite whatever authority
is giving you these ideas in the first place? I'm not even sure where to
begin, because, with all due respect, what you are saying is "not even wrong"

~~~
gizmo686
I did not intend my posts to be of the "here is what is actually going on"
variety. My concern is that I have seen no attempt in the article or (at the
time of my original posting) in the comments even addressing the possibility
that this is non-malicious. As the article is making a claim it has a burden
of proof that, in my opinion, it has not even come close to meeting.

As a direct response to my concerns, you have actually addressed some these
fundamental concerns that should have been dealt with in the original article
article allowing me, as an untrained lay-person in this matter, to take this
case much more seriously.

I am still not convinced that this is an instance of policy and not individual
incentives, but answering that would involve reasearch into many cases, their
incentive structure, comparrisons to other groups, ETC, and would need to be
written up into a long and in depth article which would get fewer readers and
less invigorate the base as these shorter and less logically compelling
pieces. I realize that this is a fundemental problem with any type of
activism, and the only solution I know of is to call it out and hope that A)
someone will provide the information in comments, B) authors will tend to
include (or reference) more information in the original article, and C) other
people will that these articles may not show what they think they do.

~~~
DannyBee
" As the article is making a claim it has a burden of proof that, in my
opinion, it has not even come close to meeting."

The NYPD has a long history of doing this, not only shown on this site, but
others. It's actually quite bad.

Here's another few examples

[http://motherboard.vice.com/blog/the-nypd-is-foia-
proof](http://motherboard.vice.com/blog/the-nypd-is-foia-proof),

[http://www.huffingtonpost.com/2013/09/03/ap-nypd-matt-
apuzzo...](http://www.huffingtonpost.com/2013/09/03/ap-nypd-matt-apuzzo-adam-
goldman_n_3861444.html?1378244386)

etc

Muckrock has enough history requesting things from the NYPD that they are
probably tired of writing up the same case of this maliciousness, again and
again.

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ck2
How the heck can a democratic state government have secret documents from its
own people?

~~~
pekk
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
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.

------
jnsaff2
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.

------
flibertgibit
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
Their response implies indicates that it does exist:

"This request is denied because the records you requested were prepared by an
NYPD attorney..."

