The NYPD does, in fact, have a Freedom of Information Law guide. Someone tell its Freedom of Information Law unit, which for months has denied emphatically that any such document exists.
It’s been more than four months since the NYPD rejected my request for any and all guides its records officers use in processing FOIL requests. When I appealed that rejection, the NYPD’s Jonathan David replied, “NYPD does not maintain a guide or manual relating to the application of FOIL.”
It is my great pleasure to introduce Mr. David and his colleagues in the Freedom of Information Law Unit to one particular procedure nestled within the current version of the New York City Police Department Patrol Guide:
In response to my request for FOIL guides, Lt. Richard Mantellino determined, and Mr. David agreed, that the only documents in the FOIL unit’s possession were “confidential communications between members of the FOIL unit and their attorneys in the context of the providing of legal advice concerning the meaning and requirements of the Freedom of Information law.”
On a hunch that the search wasn’t particularly thorough — see, for example, my back-and-forth over the department’s list of forms, particularly the part where they sent me a copy of the supposedly annually-updated subject matter list dated 1999 — I requested the handbook issued to each NYPD officer.
Lo and behold, nestled among nearly 700 procedures, one finds procedure 211-217 — full title: “Processing Legal Bureau Requests for Department Records Including Requests Under the Freedom of Information Law” — which outlines protocols by which the NYPD FOIL unit processes requests for police records. It is unclear how this procedure was deemed non-responsive to my initial request.
Last revised in August 2013 - just four months before my first request for NYPD FOIL guides - procedure 211-217 contains one fascinating deviation from New York’s Freedom of Information Law. Where the statute requires agencies to respond to records requests within five business days, the NYPD guide inexplicably suggests a more generous window of 10 days.
The statute has mandated response within five business days for years. While the NYPD’s policy is updated as of August 2013, past versions of the procedure going back to 2000 also contain the 10-day guidance.
In another apparent deviation from the statute, the August 2013 revision directs officers to make photocopies of documents rather than provide “original records” - a muddled term in the age of digital recordkeeping. Again, this provision has not been updated from the 2000 revision of the NYPD FOIL procedure, despite revisions to the statute in 2008 that require agencies to provide electronic copies of documents when it can do so “with reasonable effort.”
The NYPD’s unfamiliarity with electronic copies is rather evident - in its initial response to my request for the patrol guide, for instance, the FOIL unit replied that it had photocopied all 2,047 pages, a process for which it requested $511.75. Only after I pointed out that the entire guide is available for download as a smartphone app did the quote drop … to $15 for a digital copy on CD.
In addition to revealing these longstanding tensions with New York law, the released procedure also offers avenues of questioning that might offer an explanation as to just how the NYPD failed to unearth basic documents that every officer would be presumed to know.
First, the 211-17 procedure requires the FOIL unit to screen incoming requests, determine which divisions of the department are most likely to hold the requested records, and forward appropriately. I’ve thus requested all forwarding memos for both of my requests for NYPD FOIL guides, to determine where exactly the FOIL unit sent them.
Second, since the FOIL unit failed to respond to either request - even within a 10-day window - the 211-17 procedure dictates that the responsible officer prepare a report outlining the reason for delay and estimated date records will be forwarded for review.
I have requested the delay reports for both requests.
Finally, the procedure requires officers to prepare a report outlining potential confidentiality issues surrounding particular documents. Lt. Mantellino and Mr. David both insisted that the sole FOIL guide on hand was, as attorney work product, exempt from disclosure. So, I’ve requested the report that ought to have been prepared to justify this conclusion.
The arduous and frustrating process it took to essentially trick the NYPD into releasing its own FOIL procedures does little to inspire confidence in the department’s transparency efforts. Although the 211-17 procedures were renewed four months after then-Public Advocate Bill de Blasio awarded the NYPD a failing grade for its dismal FOIL responses in April 2013, the policy review yielded few substantive changes. We’ve also requested the procedure approval documents.
But before the procedures can be improved, the FOIL unit apparently needs a reminder of where to find them.