NYPD Decides To Ape FBI's Tactics And Cite The 'Mosaic Theory' As The Reason It Won't Disclose Budget Data

from the NYPD-forces-NYC-to-secede-from-nation,-run-as-martial-state dept

Fri, Jan 3rd 2014 6:30pm — Tim Cushing

The NYPD apparently feels it's one of the Big Boys. Presiding over a city of 8 million citizens and given free rein to operate outside the confines of the Constitution (while being tirelessly defended by the mayor and police chief) has given the department an outsized sense of self-worth. Now, it's deploying fed-level talking points to further deny access to public records via freedom of information requests.

The New York City Police Department is invoking a concept frequently employed by intelligence agencies like the FBI and CIA to deny a request for financial records on the unit that surveils Muslim communities.

Even to release a budget for the secretive Zone Assessment Unit, the NYPD claimed in a letter to HuffPost, would allow someone to "form a mosaic that depicts covert public safety activities that would be jeopardized."

Observers will note this is the same excuse given by the FBI to turn down perfectly legal FOIA requests from Ryan Shapiro, a former punk rocker turned animal rights activist. Shapiro utilized privacy waivers to make multiple requests for the same documents. Multiple versions of the same documents uncovered anomalies in the redactions, allowing Shapiro to access info that he wouldn't have received with a single request. The FBI's argument was basically that it sucked at consistent censoring, therefore Shapiro shouldn't be allowed to receive any documents as the result of FOIA requests.

As Matt Sledge at the Huffington Post points out, this "mosaic theory" has been deployed by administrations as far back as Reagan's in order to avoid complying with FOIA requests. But this is the first time a local law enforcement agency has used the theory to block access to public documents.

[Bob] Freeman, one of the state's leading authorities on FOIL law, said he has never seen a local law enforcement agency deny a records request on the basis of the mosaic theory. Nor has Jeffrey Light, a lawyer who litigates both federal FOIA lawsuits relating to intelligence agencies and Washington, D.C., police public records requests.

The NYPD also denied HuffPost's requests for information on policies relating to its cooperation with foreign governments under the International Liaison Program, which has placed NYPD officers in a dozen foreign countries to report on terror attacks. The NYPD stated that it had no records of such policies. The department also rejected requests for records on financial support from the New York City Police Foundation and federal agencies like the White House's High Intensity Drug Trafficking Area program. The Associated Press revealed last year that White House funds had been used to pay for Zone Assessment Unit vehicles and computers.

In addition to the mosaic theory, the NYPD also cited a slew of reasons why it couldn't release the records, ranging from the fear that they might reveal confidential sources and information, to ongoing litigation against NYPD spying, to a public records law exemption for intra-agency privilege. It did not cite which exemptions were being applied to which records requests.

The first issue here is the "mosaic theory" itself. The fear that dedicated requesters could piece together classified information by requesting multiple documents is an indictment of the system itself. Routine overclassification has made it impossible for those charged with vetting and releasing requested documents to do their job effectively. The bar for declaring something classified has been set so low that its use is almost entirely subjective. Instead of having verifiable standards that span each agency, every FOIA request is turned over to a variety of fiefdoms. Classified info leaks because there's no standard being applied. Everyone deploys the black marker differently, largely based on self-interest.

The other issue is the NYPD itself, which has been described as worse than the CIA, FBI and NSA when it comes to responding to FOIA requests. The department deploys every tactic possible to refuse requests and that's often following weeks of stonewalling. Just recently, the department went so far as to refuse public access to precinct police blotters, a staple of public information that it has shared without issue for decades. And this latest affront to open government and accountability is over budget documents of all things, and yet the PD claims it will expose methods and operational data.

Freedom of Information laws are specifically in place to thwart government agencies' natural tendency to obscure and obfuscate. The NYPD has never been much for sharing info with the public, dating all the way back to Giuliani's mayoral reign. Under Chief Kelly, the antagonistic attitude towards the public has only increased, along with the NYPD's secretiveness. Now, it's deloying the sort of anti-FOIA rhetoric normally reserved for federal investigative agencies and presidential administrations. New York City may be the largest city in the nation, but this is still a police department -- albeit one that insists on punching above its weight.

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Filed Under: fbi, freedom of information, mosaic theory, new york, nypd

29 Comments

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Reader Comments

The First Word

“

I have no problems with mosaic theory as a concept (i.e., outside of specific application). After all, the idea that accumulating lots of individually innocuous pieces of data can allow you to assemble a dangerous larger picture out of it is perfectly true. Indeed, we rely on it�if not by name�in many of our arguments against a pervasive surveillance state; it's not that any one piece of data deserves protection, it's that the mosaic as a whole does.

That being said, mosaic theory is only a reasonable defense against information-gathering in some circumstances; the public interest cuts in favor of both individual privacy rights and transparent government. Therefore, the tenuous protection of mosaic theory should be afforded to circumstances that might violate an individual's rights to privacy but not when a citizen is attempting to enjoy their right to know what their government is doing.

—M. Alan Thomas II

”

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arcan, 3 Jan 2014 @ 6:38pm

I am just waiting until the NYPD decides to say that its existence is classified.
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cryophallion (profile), 3 Jan 2014 @ 7:02pm

Re:
I'm sorry sir, but you have pieced together your knowledge of our existence based on mosaic theory. Any normal person would have no need to look into our existence. Therefore, you must be up to no good. I think it's time to bring you in for some questioning. Now, let me just gag you, since an innocent person wouldn't need a lawyer. Good, now answer the following yes or no questions. I'm sure you have nothing to hide. Don't worry, we are doing this for your own good. We are serving you by protecting you from yourself. Since you are not on the police force, you must not know how best to protect yourself. Leave that to us. Now then, off to our "discussion" room...
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Mark D. (profile), 3 Jan 2014 @ 7:31pm

Regarding the "mosaic theory" bullshit, is there a legal way of making the argument "That's your problem, not ours"?
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lucidrenegade (profile), 3 Jan 2014 @ 7:38pm

It will be interesting to see what the new mayor and police chief do with this.
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Anonymous Coward, 3 Jan 2014 @ 8:38pm

What is with New York City?
It seems that New York City has massive delusions of grandeur related problems. The NYPD think they're the department of homeland security, the bankers think they're masters of the universe and the mayor thinks he is king.
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Varsil, 3 Jan 2014 @ 9:37pm

How to defeat the "mosaic problem".
This one is simple--you just take every FOIPed document and put it publicly available online, unless it's a document that would only be available to a particular individual (their own file, etc).

When you get a second request for the same document, you just point out it's already available.

Now you don't have the problem of differing redacted versions, because you only ever need to make one version.

You also happen to make your organization vastly more transparent in the process.

Three guesses as to why the various organizations won't implement this method...
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Anonymous Coward, 4 Jan 2014 @ 12:22am

Mosaic Theory eh?
Sounds like the perfect defense the next time the IRS is up my ass all in my shit.
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Anonymous Coward, 4 Jan 2014 @ 4:06am

and Americans still refuse to accept and/or believe that the nation is now so close to being a Police State. unbelievable! now tell me that there is a different way to inform the people of the goings-on of authorities and security forces, other than how Snowden did it! i dont believe it!
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That One Guy (profile), 4 Jan 2014 @ 6:05am

How about that...
Yet another agency admits that apparently harmless data could add up to far more than a person would otherwise be willing to share when you compare it and join the pieces together.
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Diode Dan, 4 Jan 2014 @ 7:51am

The NYPD knows it is above the law -- and acts accordingly (like all cops & cop agencies).

They do whatever they want without fear of any serious, personal punishment.

They might have a minor public relations problem, but it will pass soon... and the public will forget (even here).

Remember "Serpico" (?) Corruption is a way of life; it gets worse as cop agencies get ever bigger.
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Advocate of Justice for All, 4 Jan 2014 @ 10:03am

Our Own Worst Enemy
The reason everyone wants to know these things is because we feel we have the absolute right to know whereas we don't. The reason things are deemed classified is to protect assets in place. I think they should release everything and compromise on going operations just so we can know how and what they were doing so we can feel better. When the next attack happens we can't say anything because what has been keeping us safe is no longer an option. I'm against guns and violence but I would consider getting a permit and lessons if we decide to open Pandora's box.
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Anonymous Coward, 4 Jan 2014 @ 10:38am

ftfy
The reason things are deemed classified is to protect funding in place.
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That One Guy (profile), 4 Jan 2014 @ 6:21pm

Re: ftfy
'So let's see, Program 'B&P' has been in place for several years and has done... okay, what has this program done? All I'm seeing is money going in and absolutely nothing being done with it, despite the fact that the money is being used somehow.'

'Oh that's the beer and pizza project, sometimes we have a rough time on the job, throwing minorities against walls and screaming at them to clear out their pockets or they'll get to cool off in a cell for the night can really cause you to work up a sweat, so we have some money set aside for relaxation.'

'Paid for by the taxpayers... of course you do. Next project.'
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That One Guy (profile), 4 Jan 2014 @ 7:40pm

Re: Our Own Worst Enemy
Not quite. The reason people want to know what the police and government are doing, is because supposedly those two groups(among others) work for the public.

Now, if they had proven themselves trustworthy, and willing to keep those that would abuse their power in check themselves, then yeah, people probably wouldn't mind some secrets, as there is justification for not making everything public.

To say they have failed to do so would be an understatement of epic proportions.

Both groups(again, among others) have shown that they can not be trusted to keep themselves in check, and are willing to claim 'classified' on any data that might expose their actions, or embarrass them, not just information that would be legitimately dangerous if made public.

This means that if the people are to find out just what they've been doing, they have to have access to it all, because there is no longer an easy way to tell whether something is classified because it would be dangerous to the people if it were made public, or classified because it would be dangerous to a few specific careers or agencies if it were made public.
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M. Alan Thomas II (profile), 4 Jan 2014 @ 8:22pm

I have no problems with mosaic theory as a concept (i.e., outside of specific application). After all, the idea that accumulating lots of individually innocuous pieces of data can allow you to assemble a dangerous larger picture out of it is perfectly true. Indeed, we rely on it�if not by name�in many of our arguments against a pervasive surveillance state; it's not that any one piece of data deserves protection, it's that the mosaic as a whole does.

That being said, mosaic theory is only a reasonable defense against information-gathering in some circumstances; the public interest cuts in favor of both individual privacy rights and transparent government. Therefore, the tenuous protection of mosaic theory should be afforded to circumstances that might violate an individual's rights to privacy but not when a citizen is attempting to enjoy their right to know what their government is doing.
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M. Alan Thomas II (profile), 4 Jan 2014 @ 8:26pm

Re:
I suppose I should also point out that the argument that the NYPD isn't as special as the feds only works if you assume that the feds are special. If I don't like the NYPD making this argument, it's because I don't think anyone should, not because I think it's the province of a different government agency. The fact that other government agencies also do this is irrelevant to that argument.
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Bergman (profile), 5 Jan 2014 @ 12:06am

Re:
There is such a thing.

It's called a Writ of Mandamus.
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Bergman (profile), 5 Jan 2014 @ 12:14am

Re: Re: Our Own Worst Enemy
Our republic is a representative democracy. We elect people to office to represent our interests and they act on our behalf.

If they fail to act on our behalf, or were lying during their campaign to get votes they wouldn't get if they told the truth (Obama is about the most famous example of both currently in office) then our system will result in those votes they no longer qualify for to another candidate, and remove them from office at the next election (or sooner, in the case of recall elections and impeachment). This is also why we have term limits on high offices -- so that no one can become elected for life.

But if We the People are not allowed to know what our representatives are doing in our names, we can't make an informed decision on who to vote for. Voting is supposed to be how the People control our own government, not how we rubber stamp acts of government we're not allowed to read.
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Bergman (profile), 5 Jan 2014 @ 12:17am

Individuals and corporations are required by law to obey subpoenas and search warrants. What do you suppose would happen to someone who cited the mosaic theory as a reason why they really can't comply with the government?

Private citizens have not sworn an oath to uphold the law, are not entrusted with vast resources or a near-monopoly on use of force. So why is it that people who do have or have done all of those things get a free pass on breaking the law, when anyone else would get their compliance with the law enforced by a SWAT team?
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Anonymous Coward, 5 Jan 2014 @ 8:47am

Re: Re: Re: Our Own Worst Enemy
Agreed - however it must be pointed out that;
1) Obama is not the most famous liar currently in office
2) There is no recall at the federal level
3) Demanding impeachment for every little thing one does not like is detrimental to your credibility
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Anonymous Coward, 5 Jan 2014 @ 8:52am

Re:
Because only little people have to obey the law.
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M. Alan Thomas II (profile), 5 Jan 2014 @ 10:49am

Re: Re:
a.k.a. the Writ of Do Your Damn Job
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Anonymous Coward, 5 Jan 2014 @ 12:07pm

Too Big to Fail Means Too Big to Care
Remember when the US Gov't bailed New York out of bankruptcy? They let plenty of little towns go under but NY is considered too big to let that happen to them (no matter how they waste money). So now they've got a police department that doesn't care how much money it wastes defending lawsuits over it's actions because it knows it will never, ever have to worry about running out money. The rest of the country will always bail them out if need be.
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daemon_ZOGG, 5 Jan 2014 @ 9:45pm

"NYPD Decides To Ape FBI's Tactics And Cite The 'Mosaic Theory' As The Reason It Won't Disclose Budget Data"
NYPD is the pinnacle of Surveillance Police/Storm Troopers/Violators of Constitutional rights. If I ever moved to New York, I would be in violation of a great many state laws on the subject of defensible weapons. So I submit, that wherever the firearm laws are the most leanient and in line with the writtent Constitution, that is where I will exist. New York, even as a state it self, is a police state. The majority of the N.E. United States is very much that, already. A U.S. civil war between the Federal and State governments will eventually begin. I will fight for the Great State Of Texas. If you are a US citizen and/or truly believe in the US Constitution, fight for the original U.S. Constitution or die as a true State patriot. I would, and will when the revolution begins. Believe in the state government in which you live, NOT the federal government. Their hands are firmly gripped in each others' front pockets. Not in your best interests. Your votes don't count, anymore.
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Anonymous Coward, 6 Jan 2014 @ 4:49am

Re: "NYPD Decides To Ape FBI's Tactics And Cite The 'Mosaic Theory' As The Reason It Won't Disclose Budget Data"
"A U.S. civil war between the Federal and State governments will eventually begin"

Idiot theories like this belong on the Alex Jones Show.
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Anonymous Coward, 6 Jan 2014 @ 7:36am

The NYPD is only the first. The tactics and policies in place in New York, if not stopped there, will slowly spread across the country, city by city.
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Pragmatic, 6 Jan 2014 @ 8:30am

Re: Our Own Worst Enemy
Uh, before we go all crazy and break out the boomsticks I'd like to point out that much of the trouble we're having with all this is down to the unhealthy fear and hatred of GOVERNMENT itself, and the knock-on effect of distrust of the democratic process.

Instead of working to get our congresscritters back in line, we're fighting each other over partisan crap on one side and refusing to engage with our reps or even offer a legitimate solution beyond a possible burst of violence with no long-term plan for what to do afterwards, the result of which would be either a power vacuum followed by the fragmentation of our nation into the antebellum split or a doubling down of the surveillance state. My money's on the doubling-down as they are better armed than we are and they know what we're posting here so cool your heels, Advocate.

We need to work together to restore the democratic process to the heart of our nation's political discourse instead of talking trash about violent rebellion.

It starts by getting involved in the democratic process by voting and by promoting those candidates we want to win so that others vote for them too. However, be aware that only the most appealing candidate will win. A minarchist I know decided that democracy had failed him when a candidate he wanted got nowhere in the last election. That was down to the extreme right-wing views of the candidate, not the electorate. Honey gets more flies for you than vinegar, people.
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Anonymous Coward, 6 Jan 2014 @ 9:24am

Now you have Bratton in charge.

Guy who was successfuly sued under RICO while in LAPD.
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John Fenderson (profile), 6 Jan 2014 @ 10:07am

They can't have it both ways
If "the mosaic theory" is going to be accepted, it needs to be accepted across the board -- which means that the NSA's "collect it all" actions must stop immediately as they are, under the mosaic theory that activity is certainly an invasion of privacy.

If the actions of the NSA are to be accepted as not being such an invasion, then the mosaic theory cannot be accepted as a reason to dodge FOIA requests.

They government shouldn't be able to have it both ways.
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