The NYPD’s secrecy weapon

Richard Rosario had almost run out of options before his lawyers turned to the Exoneration Initiative nearly two years ago. He had proclaimed his innocence since New York City police detectives accused him of the 1996 murder of George Collazo in the Bronx, and he had exhausted most of his appeals.

After 15 years in prison, Rosario had good reason to try once more. Several witnesses could place him in Florida at the time of the homicide, and in 2007 a federal judge agreed that Rosario’s original lawyers had failed him by not calling more of those witnesses to testify at his trial. Rosario’s next obstacle, however, wasn’t a legal technicality or missing witness — it was a public records request to the New York City Police Department.

AP Photo/Adam Nadel

AP Photo/Adam Nadel

“Every federal court who reviewed the case said, ‘Yes, the witnesses were credible,’” said Rebecca Freedman, assistant director of the Exoneration Initiative, a nonprofit organization that investigates wrongful convictions.

In late 2011, Freedman sent off a public record request to the NYPD for the police reports taken the night of the murder, in search of an eyewitness who could help exonerate Rosario. Then she ran into a big blue wall. The NYPD delayed and delayed her requests, forcing Freedman to file a lawsuit against the police department in April. In June, a judge ordered the NYPD to turn over seven unredacted pages of police reports, three of which detailed an interview with a witness who described the shooters and getaway vehicle in the murder.

“These facts, if established, would appear to contradict the People’s theory at Rosario’s criminal trial, which was that Rosario killed Collazo after a random altercation,” Justice Peter H. Moulton wrote in his decision.

The NYPD has appealed the judgment. As a result, Freedman has yet to see the witness statements that could help with the investigation into Rosario’s innocence. The case highlights an uncomfortable reality: New York State’s freedom of information laws leave little recourse outside of the courtroom when public agencies such as the NYPD refuse to comply with public record requests. And even as the city rolls out new open-data  and crime mapping initiatives, lawsuits continue to pile up at One Police Plaza accusing the NYPD of making it nearly impossible for information seekers to access public records available under state law.

“I honestly don’t know how regular citizens ever succeed at freedom of information law,” Freedman said. “It’s a complicated statute. And dealing with agencies resistant to those statutes? It’s a full-time job.”

When NYPD spokesman Paul Browne announced his upcoming departure from the force last month, several years of pent up frustration against the department mouthpiece burst into the open. Journalists described Browne as less than truthful when it came to several important stories, such as a whether whether a police captain was punched during an altercation involving a city councilman and whether police officials used a controversial film about radical Islam as training material.

But a deeper issue at the department remains its questionable commitment to complying with state freedom of information law (FOIL). The department has refused to respond to hundreds of requests from the general public within the timeline spelled out in the law, according to a recent review from New York City Public Advocate Bill de Blasio, which gave the department a failing grade when it comes to transparency.

“There are any number of situations in which the NYPD has engaged in what I have come to categorize as the Nancy Reagan response — ‘Just say no,’” said Bob Freeman, executive director of the New York State Committee on Open Government.

Information-seekers whose records requests are denied can file an appeal with the public agency in question. They can seek an advisory opinion with the Committee on Open Government, which has a watchdog role but no enforcement powers. But the only step after that remains an expensive and time-consuming lawsuit.

In 2006, state lawmakers tweaked New York FOI laws and made it easier for petitioners to recoup attorney fees if they prove public agencies either unreasonably withheld public records or failed to respond to requests within the statutory deadlines. In the NYPD’s case, this hasn’t served as much of a deterrent.

Some other states offer stronger tools to pressure recalcitrant public agencies. A few have granted attorneys general enforcement powers, and a small handful, including Connecticut, have a formal commission that tries to resolve complaints before they reach a courtroom. Some states, such as Arkansas, can charge violators with minor misdemeanors, but prosecutions remain infrequent, according to the Kenneth F. Bunting, the executive director of the National Coalition for Freedom of Information at the Missouri School of Journalism.

“The unfortunate truth is that in most state public disclosure laws, there is not an intermediate step between screaming and yelling for the document and suing for the document,” Bunting said.

Most of the recent challenges to the NYPD have come from The New York Times and the New York Civil Liberties Union (NYCLU). Christopher Dunn, the associate legal director at the NYCLU, said responsibility for a lack of transparency rests squarely with police brass.

“I don’t think the problem is the law,” Dunn said. “The problem is that the NYPD is terrible at honoring both the spirit and letter of the law. What I think we need is an entirely new attitude at the department when it comes to FOIL.”

In 2009, the NYCLU sued to appeal blocked freedom of information requests for reports of police-involved shootings. A judge ruled in their favor two years later and ordered the NYPD to turn over the reports. In 2010, The New York Times sued the NYPD over its failure to disclose three different electronic databases: one on handgun permittee addresses, one on hate crime locations and one showing crime incidents.

A state court ordered the NYPD to release the first two items, but denied the third request because the police department asserted it would have to build new software in order to avoid disclosing private information. Though the judge declined to award attorneys’ fees to the Times, she still still came down hard on the police.

“The NYPD acknowledges that it has routinely failed to comply with FOIL, and it represents that, as of May 2011, it has changed some of its practices so as to bring them into compliance,” New York Supreme Court Justice Jane Soloman wrote in her 2011 ruling.

Freeman said he hasn’t seen evidence since of any changes to freedom of information request procedures at the police department. The NYPD did not respond to a request for comment. In response to a request for comment, a New York City Law Department spokeswoman pointed to a February decision in which a state appellate court overturned Soloman’s ruling to release the gun permit and hate crime databases, and sent the case back to the trial court over the criminal incident data.

The appellate court also ruled that the NYPD was not in violation of public records laws because state law doesn’t set explicit time limits for yes-or-no responses to requests for information. New York Times Assistant General Counsel David McCraw said he plans to take the case up to the Court of Appeals, the state’s high court, in the coming weeks.

In many of the more recent cases, documents the NYPD couldn’t find while a freedom of information request is pending suddenly materialize once the issue escalates to a lawsuit against the department. That’s what happened to Remapping Debate, a public policy news website that sought data on parade and sound permits in the 1960s, 1990s and 2000s for an article about how the NYPD handles public demonstrations.

After waiting 11 months for results, the news website and Andrew Celli, an attorney with the firm Emery Celli Brinckerhoff & Abady, filed a lawsuit against the NYPD in State Supreme Court this past April. They reached a settlement in late July. In the time between filing the lawsuit and settling, they received nearly 3,000 pages of previously unobtainable NYPD documents.

“It’s the classic stonewall at City Hall,” Celli said. “I believe the police department counts on some large number of people who make FOIL requests not having the resources or the sophistication to press their demands in court. I think they built that into their system.”

Celli said he and Remapping Debate may file an appeal in order to obtain files, dating back to the 1960s, that haven’t yet materialized.

“We don’t believe they conducted a diligent search,” Celli said.

Not all plaintiffs agree to settle once the NYPD belatedly produces their public records after they file a lawsuit. Issa Kohler-Hausmann, a lawyer and sociology doctoral student at New York University, sued the NYPD in May over public record requests for which she never received a meaningful response — that is, until she sued. She wanted the police department to share precinct-by-precinct historical crime data, so she could study the department’s quality-of-life policing patterns and their effect on neighborhoods.

At first, Kohler-Hausmann didn’t see a problem with the request. The department already posts citywide crime complaint data online, and the NYPD keeps precinct-level arrest data in their CompStat system. All she sought was corresponding data on complaints and summonses for each precinct.

Kohler-Hausmann filed her request last July. Aside from three letters from the NYPD asking to extend the deadline for a yes-or-no answer to her request, she didn’t hear back from the police department officials until she filed her lawsuit.

A few weeks after she sued, police department officials called her into a meeting to discuss a potential settlement with NYPD lawyers and database managers. They offered her the data detailed in her original request, in a slightly different format than what she first requested. But Kohler-Hausmann asked for something else she contended she was entitled to under the law: attorney’s fees, which she estimated added up to $10,000 for several dozens of hours of work.

That’s where the settlement talks broke down, as revealed in e-mails between Kohler-Hausmann and NYPD Lt. Lori Hernandez, a deputy managing attorney.

“I again point out that we have every right to defend the NYPD’s interests and that the data offered was for settlement purposes only,” Hernandez wrote in one e-mail, explaining why the NYPD would not release the data if Kohler-Hausmann insisted on pressing her case.

“I am disappointed to learn that you feel that ‘defend[ing] the NYPD’s interests’ consists in resisting lawful and reasonable Freedom of Information Law requests for data on policing for the purposes of social science research,” Kohler-Hausmann fired back.

Kohler-Hausmann said the NYPD’s lawyers used her project’s deadlines as a way to pressure her into dropping her petition for attorney’s fees. She refused.

“The NYPD is just in a very defensive posture,” Kohler-Hausmann said. “They think everyone out there wants to prove what they do is wrong. It’s our data. We’re the taxpayers of the city. They’re acting like the goddamn Egyptian military here.”

At one point before filing her lawsuit against the NYPD, Kohler-Hausmann said she talked with a woman at the police department’s records access office over the phone and asked her about specific policies on public record requests and response timelines.

“The lady on the phone said I had to FOIL it,” Kohler-Hausmann recalled.

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