NYPD FOIL guide

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

Any manual, training reference or other guide by which members of the NYPD FOIL unit are trained on the application of FOIL and processing of FOIL requests.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, 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,

Shawn Musgrave

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Dec. 20, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Dec. 20, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2014-PL-0006.

Thank you for your help.

Jonathan David
Records Access Appeals Officer
New York City Police Department
One Police Plaza - Room 1406
New York, NY 10038-1497

February 12, 2014

Mr. David:

I am writing to appeal the rejection of 14-PL-0006, in which I requested "Any manual, training reference or other guide by which members of the NYPD FOIL unit are trained on the application of FOIL and processing of FOIL requests."

By the attached rejection letter, Lt. Mantellino of the FOIL unit asserts that NYPD's FOIL manual itself is exempt from release under the attorney-client work privilege, as are the department's FOIL training materials. To put it lightly, Lt. Mantellino's is not the appropriate application or interpretation of the attorney-client work privilege. Just because something was prepared by an NYPD attorney does not mean that it qualifies as an attorney work product and thus exempt from release under FOIL. I would expect that most documents, particularly policy and protocol documents as I have requested, were prepared or at least reviewed by an attorney. Just as having an investigator review a particular document does not make that document exempt as an investigative record, lawyerly involvement does not magically render these documents exempt by virtue of having crossed an attorney's desk.

Rather, it is the content of the requested document that determines whether it is exempt. The attorney-client work privilege is meant to guard frank assessments of law as applicable to sensitive issues, particular incidents and litigation. This exemption does not apply to general documents that outline a department's protocols and policies. Such secretive agencies as the NSA, FBI and the Department of Defense have released their FOIA handbooks and protocol guides with minimal redactions, and even posted them online in full. I would assume (and hope) that teams of attorneys from each agency compiled and scrupulously reviewed these guidebooks, but their records officers would never dream of invoking attorney-client privilege as NYPD has done here.

I would be remiss if I did not highlight the symbolic significance of this particular rejection, especially in the context of so many absurd rejections that have issued from the NYPD FOIL unit over the past year. Out of all NYPD's offices, one might assert that the Freedom of Information team ought to be among the more transparent. This latest rejection belies this assumption even more than previous ones. In past rejections, the FOIL unit has claimed "inability" to locate documents even when I have painstakingly described them down to precise form number. Lt. Mantellino has also invoked exemptions for documents that New York courts ordered releasable in the past two or three years. In this case, NYPD's Records Access Officer has rejected a request for documents about the very process of transparency itself within the department. Rejecting such requests in slapdash fashion does little to inspire confidence in NYPD's competence or good faith in fulfilling its obligations under FOIL.

I would respectfully request an immediate reversal of this rejection and prompt delivery of the requested documents. Please let me know if I can clarify the request in any way.

Best,

Shawn Musgrave
MuckRock