Comms between DOJ and NYPD on Eric Garner probe

To Whom It May Concern:

Pursuant to the New York Freedom of Information Law, I hereby request the following records:

- All communications or memos between NYPD Deputy Commissioner of Legal Matters Lawrence Byrne and U.S. Justice Department officials (emails from the domain "usdoj.gov") between Jan. 1, 2018 and July 17, 2018.

On July 16, Justice Department officials told media outlets that Byrne had been informed by DOJ in the spring that the NYPD was free to move forward with its internal investigation into the death of Eric Garner: https://www.cnn.com/2018/07/16/us/eric-garner-case-disciplinary-action/index.html

I therefore request those communications and any other records summarizing meetings, calls or messages between the Justice Department and Byrne in the above-referenced time frame.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

CJ Ciaramella

To whom it may concern:

This is an appeal of the New York City Police Department’s (“NYPD’s”) constructive denial of the Freedom of Information Law (“FOIL”) request filed by CJ Ciaramella, a reporter for Reason Magazine.

On 7/20/2018, I sent a FOIL request to the FOIL Unit of the NYPD seeking information communications between NYPD officials and the Department of Justice. My request was acknowledged by NYPD on 7/24/2018 and assigned number FOIL-2018-056-05390: https://a860-openrecords.nyc.gov/request/view/FOIL-2018-056-05390

The request was given an estimated response date of 12/07/2018. However, I have received no updates since, despite sending several emails asking for its status. The status of the request was recently changed from "open" to "closed," despite my not having received any notification of its closure or the justifications for it being denied.

For the following reasons, I hereby appeal the adequacy of the NYPD’s response to the Request:

A. NYPD’s failure to respond is a constructive denial

FOIL provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3)(a) of the Freedom of Information Law (FOIL) states in part that:


“Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.… If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.”

Furthermore, “Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.” §89(4)(a)

As noted above, NYPD has failed to provide the requested records or provide a written denial by the listed due date, and is now five months past its expected response date. When a respondent provides an approximate date by which it shall provide its response and "fails to respond to a request within a reasonable time after the approximate date given," the requester may deem this as a constructive denial of his or her FOIL request (see 21 NYCRR § 1401.5 [e]; Kohler-Hausmann v New York City Police Dept., 133 AD3d 437, 437 [1st Dept 2015]).

Please note that, since NYPD has failed to inform me of my right to administratively appeal this constructive denial, the appeal cannot be denied as untimely. As the New York Committee on Open Government has written in an advisory opinion: “In situations where an agency constructively denies a FOIL request by failing to respond within the time limits set forth in §89(3)(a) of FOIL, it follows that the agency also failed to inform the person denied access to records of their right to appeal.” https://docs.dos.ny.gov/coog/ftext/f19372.html

For the foregoing reasons, I appeal the constructive denial of the NYPD’s response, and ask that you provide me with requested documents. Under New York law, the NYPD has 10 business days to decide this appeal, see N.Y. Pub. Off. Law § 89(4)(a). I also request that you provide us with the documents in electronic format where possible. Should you have questions, please contact me by telephone at 503-951-9863.

Sincerely,

CJ Ciaramella
1747 Connecticut Ave NW
Washington, DC 20009