NYPD operations orders 1990 to 2014

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:

All operations orders issued from January 1, 1990 through December 31, 2014, including those that have been revoked, suspended or replaced by subsequent orders.

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 Feb. 6, 2015. 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 Feb. 6, 2015. 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 Feb. 6, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-2604.

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 Feb. 6, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-2604.

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 Feb. 6, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-2604.

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 Feb. 6, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-2604.

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 Feb. 6, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-2604.

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 Feb. 6, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-2604.

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 Feb. 6, 2015. 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-2604.

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 Feb. 6, 2015. 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-2604.

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 Feb. 6, 2015. 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-2604.

Thanks for your help, and let me know if further clarification is needed.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 6, 2015. 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-2604.

Thanks for your help, and let me know if further clarification is needed.

To Whom It May Concern:

I have not received any update for this request since July 2015. I hereby appeal for constructive denial of my request, and ask that this FOIL request be remanded for good faith search and provision of documents in keeping with the NYPD's legal obligations to disclosure.

Respectfully,
Shawn Musgrave

Sergeant Jordan S. Mazur, Records Access Appeals Officer
New York City Police Department
One Police Plaza
Room 1406
New York, NY 10038

Sgt. Mazur -

I hereby appeal the rejection in full of my request under the FOIL, which the NYPD assigned tracking number 2015-PL-2604.

In February 2015, I requested the following records from the New York City Police Department: "All operations orders issued from January 1, 1990 through December 31, 2014, including those that have been revoked, suspended or replaced by subsequent orders." The NYPD FOIL office did not acknowledge my request until March 2015, via a letter dated March 24, 2015, in which the office indicated that the request had been assigned tracking number 2015-PL-2604.

In a subsequent letter dated April 29, 2015, Lt. Richard Mantellino wrote that his office "estimated that processing your request will be completed by June 29, 2015." At this time, it seems, the office did not consider my request unduly burdensome: while this response timeframe is well outside the statutory time limit under the FOIL, it is relatively rapid relative to the NYPD's processing time.

June came and went. In a subsequent letter dated July 7, 2015, Lt. Richard Mantellino begged time for further review, and this time put the estimated date for completing my request at September 7, 2015.

As it must, time marched on, through fall and winter and into spring of the following year. On April 1, 2016, I sent an appeal to the NYPD Records Access Appeals Officer for constructive denial of my request — again, by this time the NYPD FOIL office had missed two of its own deadlines, and we were now more than a year past the date I first sent my request to the NYPD.

In a letter dated December 20, 2016 — more than 8 months after I submitted my appeal for untimely response — you rejected my appeal for constructive denial as "premature," since I had not yet actually been denied. I respectfully point you to the New York Committee on Open Government for an explanation of constructive denial (see: https://www.dos.ny.gov/coog/explanation.html), as my current appeal is on a different topic. (In short, your response to my April 2016 appeal failed utterly to address the merits of my claim of constructive denial.)

No matter. Now, two years after I first requested the above documents, my request has been formally rejected by Lt. Richard Mantellino, via a letter dated January 31, 2017.

The trouble lies in the rather terse — and fully indefensible — grounds on which the NYPD FOIL office has rejected my request, namely that "it would require an extraordinary effort not required under FOIL."

Foremost, Lt. Mantellino does not cite any statute in swatting down my FOIL request. Consulting the statute and relevant case law, we'll find that "extraordinary effort" does not qualify as grounds for denial. Furthermore, in the 2008 amendments to the FOIL statute, we'll find that the following was inserted into the law:

"An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy [....]"

The statute itself, then, undercuts Lt. Mantellino's contention that belatedly crying "extraordinary effort" ends an agency's obligation to process a given FOIL request.

New York courts have reproached agencies that attempted to dispense with supposedly difficult requests. Por ejemplo, see Matter of South Shore Press, Inc. v Havemeyer (http://law.justia.com/cases/new-york/appellate-division-second-department/2016/2013-09748.html); Matter of Irwin v Onondaga County Resource Recovery Agency (http://www.courts.state.ny.us/REPORTER/3dseries/2010/2010_01238.htm); Matter of Weslowski v Vanderhoef (http://www.nycourts.gov/reporter/3dseries/2012/2012_06303.htm). If you need further convincing, you may review a fuller list of FOIL caselaw here: https://www.dos.ny.gov/coog/caselaw_foil.html

If the courts aren't convincing enough, the implementing regulations for the FOIL — 21 NYCRR PART 1401 — suggest that Lt. Mantellino has shirked basic obligations of a records access officer. See 21 NYCRR PART 1401.2, "Designation of records access officer," which outlines the responsibilities of the RAO:

"The records access officer is responsible for assuring that agency personnel:
[....]
(3) contact persons seeking records when a request is voluminous or when locating the records sought involves substantial effort, so that agency personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of the records requested."

If, at any point over the past two years, the NYPD determined that my request was voluminous or required "substantial effort," Lt. Mantellino should have assured that agency personnel contacted me to "attempt to reasonably reduce" the scope of the request.

Beyond the fact that "extraordinary effort" is not grounds for denial, Lt. Mantellino has not provided any facts to bolster his claim that this request would be burdensome at all. The requested documents are orders issued by NYPD command staff. On submitting this request, I foresaw that such orders are maintained in a central repository, and Lt. Mantellino has provided no information to the contrary.

Documents obtained previously from the NYPD — under FOIL, no less! — contain lists of such operations orders. See "Implementation of the On-line Patrol Guide," Operations Order No. 30, August 1, 2013 (https://d3gn0r3afghep.cloudfront.net/foia_files/8-12-14_MR12403_RES.pdf). The second through fifth pages of that order enumerate dozens of orders, including one operations order from 1998 and a full section of orders that are now revoked.

Given the incontrovertible existence of at least one central resource that collates operations orders, it is difficult to understand how the present request would require anything beyond an ordinary effort.

For the above reasons, I respectfully request that you remand this request to the NYPD FOIL office for a good faith (and expedient) search and provision of responsive records.

Best,
Shawn Musgrave