The NYPD has agreed to stop flouting the state public records law that it has ignored for over a decade and start accepting records requests by email, in response to a lawsuit.
Since 2006, the Freedom of Information Law has required government agencies to accept and respond to FOIL requests by email, provided they have email. The NYPD, however, didn't earn its F grade in transparency from Bill de Blasio when he was public advocate for nothing—the department has simply ignored this provision since it was put in place, requiring that people make requests by mail. And if in recent years a reporter or researcher happened to come across the email addresses of NYPD records officers, they would still respond only by snail mail, deterring and delaying an untold number of requests.
Now, as part of a settlement and court order finalized Thursday, the agency has agreed to start following the law. The deal comes in response to an activist's lawsuit seeking records related to police use of Long Range Acoustic Device sound cannons, including at a Black Lives Matter protest. According to the terms of the settlement, the NYPD also has to turn over records it had tried to withhold.
I thanked attorney Gideon Oliver, one of the lawyers on the case, for taking "Sue the NYPD to make it accept FOIL requests by email" off of my long-term to-do list.
"Yesterday I dug up a letter that I wrote to the NYPD in December 2006 about this issue," he replied, "so it's been on my list for a long time as well."
What took so long, you ask?
"I think they got away with it for so long because no one sued them and tried to get a judge to say they could no longer continue to violate the law," Oliver said. "I think the police department cares so little about the Freedom of Information Law when it comes down to it that that's what it always would have taken, and that's what it ultimately did take."
Oliver said the email issue was part of another NYPD FOIL case he worked on, but the NYPD started moving to provide the documents soon after he sued, foreclosing discussion of the email aspect. Outside of the occasional judge's ruling providing documents and attorneys fees to information seekers with the wherewithal to sue, there are few foreseeable consequences for a government bureaucrat considering whether to violate FOIL.
Speaking to Gothamist earlier this month about City Council members' attempt to learn more about what surveillance tools the NYPD is using and how, NYPD Deputy Commissioner of Legal Affairs Larry Byrne said that the courts are the only place where the department can be directly told how to operate.
"Ultimately the state and federal law should govern what the NYPD does," he said. "We're a public agency that has multiple levels of oversight, and we're accountable to multiple levels of government."
The NYPD quietly added the FOIL@nypd.org email address to its document request page in late 2016, as settlement negotiations were happening, according to Oliver. Going forward, the department must provide records in electronic formats whenever possible, and also accept and respond to appeals by email. The department is also supposed to come up with e-FOIL policies, and to publish a list of records it has in its possession within the next three months.
The lawsuit was brought on behalf of Keegan Stephan, a police accountability activist and law student, seeking a variety of documents memorializing LRAD uses, policies, and training. Stephan is one of several plaintiffs in a separate suit challenging the deployment of the noise weapon against protesters and bystanders at an early-morning Black Lives Matter protest in Midtown in December 2014. At first, the NYPD sent Stephan pages of its patrol guide in response to a far-reaching, detailed request. Stephan filed five administrative appeals before suing, and throughout the process police refused to deal with him over email. The FOIL settlement stipulates that police have to turn over recorded communications from the night of the protest, reports on past LRAD use, and other documents. The settlement states that the NYPD does not have a definitive record of every time officers have used the weapon.
Oliver and his co-counsel Elena Cohen will get $24,000 in attorneys fees, according to the terms of the settlement. Because the agreement is the subject of a judge's order, violations by the police department could land them back in court. Oliver said he hopes to hear from people who are still getting FOIL responses in the mail from the NYPD in the coming months.
"Going forward I really would love to know about any instances where that happens because that would be a violation of the stipulation and order," he said, "not just the law that the NYPD doesn't care about."
The NYPD didn't respond to an email seeking comment. The city Law Department declined to comment.