Appeals Court Rejects New York Police Unions' Attempt To Block Disclosure Of Disciplinary Records

from the your-definitions-of-'irreparable'-and-'harm'-suck-equally dept

A bunch of New York City law enforcement unions have been suing to block the side effects of the repeal of 50-a, an ordinance passed in 1976 that exempted police departments and other agencies (like fire departments) from disclosing information about misconduct to the public.

For more than 40 years, the bad law remained in place. It took nationwide anger of the killing of another black man by a white cop to get it taken off the books. In response, a bunch of unions presiding over the New York City's police and fire departments lawyered up, hoping to continue withholding this information.

The legal battle has reached the Second Circuit Court of Appeals. And the Appeals Court doesn't find the plaintiffs' assertions about "irreparable harm" credible. The unions claim the repeal of 50-a (and the consequent release of disciplinary records) violates agreements they have with the city -- one that says findings in favor of officers/employees will be removed from employees' disciplinary records.

The Appeals Court [PDF] points out that the unions can't just decide the public employees they represent don't have to follow the law.

[T]o the extent that this claim implicates records that must be disclosed under FOIL, the NYPD cannot bargain away its disclosure obligations.

The Appeals Court affirms everything the district court already told the unions. "Irreparable harm" is not only not foreseeable, it's not even remotely credible.

The Unions assert that law enforcement officers will have fewer employment opportunities in the future if records of the allegations against them that prove to be unfounded or unsubstantiated are disclosed, even though each record will reveal the outcome of the investigation. But the District Court noted that future employers were unlikely to be misled by conduct records that contained “dispositional designations” specifying that allegations of misconduct were unsubstantiated, unfounded, or that the accused officer was exonerated. As the District Court also noted, despite evidence that numerous other States make similar records available to the public, the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities.

No harm foreseeable there. Unfortunately, that sort of means employers like the NYPD aren't all that selective in their hiring processes. Multiple allegations -- even if they ultimately resulted in exoneration -- should be a red flag. And the NYPD should definitely know this because its internal review process clears bad cops all the time, ensuring they can continue to engage in misconduct without fear of reprisal.

The same goes for the equally wild claim that disclosing these records will result in physical harm to officers.

We also address the Union’s more general assertion of heightened danger and safety risks to police officers. We fully and unequivocally respect the dangers and risks police officers face every day. But we cannot say that the District Court abused its discretion when it determined that the Unions have not sufficiently demonstrated that those dangers and risks are likely to increase because of the City’s planned disclosures. In arriving at that conclusion, we note again that many other States make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to police officers.

The unions' argument only makes sense if they are asserting that New York City residents are far more prone to acts of violence targeting law enforcement officers following the release of public records than people living elsewhere in the company. And if that's the argument, it hasn't been preserved for appeal so...

The Appeals Court hands out even more rejection along state law lines. Simply asserting "diminished" employment opportunities on the presupposition of "damaged reputations" is not enough to engage state constitutional protections. There's also nothing in the unions' equal protection assertions since (despite the best efforts of a bunch of idiotic legislators at both state and federal levels) police officers and first responders are not a protected class.

Everything the unions argued is "without merit." That's the final call. (Note: It may not be the final call. But this doesn't look like the sort of the thing the Supreme Court is interested in entertaining.) 50-a is gone. The records can be made public. And if cops think it will hurt them to hand over records showing they've been exonerated will result in harm to themselves and their careers, they're not going to find any sympathy from the courts, much less the general public they've been hiding records from for years.

Filed Under: appeals court, disciplinary records, foia, foil, new york, nypd, public records, transparency

NYPD Screws Up Again; Hands Out Even More 'Secret' Facial Recognition Docs To Researchers

from the 'the-more-we-suck,-the-more-you-know'-rainbow.gif dept

The inadvertently great thing about the New York Police Department is its random inability to keep its secrets. Journalists have referred to the agency as being more opaque than redaction masters like the CIA and FBI. Its perpetual efforts to thwart public records requesters have led to insanity like refusing to release the department's public records response guidelines or years of stonewalling over innocuous information.

So, when the "fuck you, citizens" facade inadvertently crumbles, we are: All. Over. It. Back in April, Georgetown researchers received documents the NYPD surely did not mean to release. Included in the NYPD's release was a presentation on facial recognition software that it swore up and down (often in front of a judge!) was too sensitive to release to the public. This despite the fact the presentation was from a conference where any member of the public with $1,700 could view this super-sensitive slide deck.

The NYPD managed to talk a court into the ordering the impossible: the post facto memory-holing of documents researchers had already seen. The court said the researchers could not talk about the presentation's content and ordered them to "return" the PDF they had received, however the hell that works.

Well, fool themselves once, shame on the NYPD. Fool themselves two or more times, the court says, "You're on your own." The New York Daily News reports the NYPD has screwed the facial recognition pooch yet again. Unbelievably, it has made the same mistake twice while dealing with the same public records requesters.

For the second time in three months, city lawyers have mistakenly turned over documents about the NYPD’s facial recognition program to academic researchers and are asking a judge to order the information returned.

The NYPD paperwork recently handed over to the Georgetown Center on Privacy and Technology included names and case numbers of people who were run through the facial recognition system, city attorney Jeffrey Dantowitz said in a hearing Tuesday. The documents were marked for redaction but accidentally sent to the researchers.

The NYPD engaged in redaction failure. Not the kind where someone uses a PDF tool they clearly don't understand, but rather the kind of failure where redactions are never made. The NYPD's lawyer called the black bar omission "embarrassing." The court used different words to describe this failure.

“One was too much. Two is more than I can tolerate at this time,” [Justice Shlomo Hagler] said.

If the NYPD was hoping another irrational decision would be handed down, its hopes were dashed by an exasperated judge. Georgetown gets to keep the end result of the NYPD's inadvertent transparency. Even better, it gets to publish the things the NYPD somehow forgot to redact. And there will be none of this "return the PDF" bullshit.

Still, the NYPD's public-facing rep is apparently hoping if he says enough stuff to local press outfits, the judge will see fit to build a time machine for the malfunctioning NYPD. In an extended (given the circumstances) statement to the Daily News, NY Law Department spokesperson said such redaction failures occasionally occur. They apparently occur more frequently "in litigation" (as they have done twice!) and that there "exists a legal process" for getting the unredacted documents back from the inadvertent disclosees.

Good talk, but it seems the court has already shut that argument down. If the NYPD can't competently redact documents, it has no business asking the court to fix its fuck ups. That much seems clear from the judge's short, pointed statement.

Filed Under: foia, foil, nypd, public records
Companies: daily news

NY Court Tells NYPD It Can't Hide Surveillance Of Protesters Behind A Glomar Response

from the prying-the-lid-off-the-public-records-jar dept

Another lawsuit over the NYPD's surveillance of First Amendment-protected activities continues. Records requests by Black Lives Matter offshoot Millions March detailing surveillance methods used by the NYPD against protesters have been met with the usual opacity by the PD. It has done what it always does in cases like these: throw FOIL exemptions around and stonewall the hell out the request. The PD has also added a few Glomar responses to the mix, refusing to confirm or deny the existence of sought records.

Fortunately, the judge presiding over the case -- Arlene Bluth -- isn't in a charitable mood. Greeted with the NYPD's incessant opacity, the judge has called bullshit -- repeatedly -- over the course of a 14-page ruling [PDF]. The plaintiffs are seeking records related to the NYPD's use of surveillance tech targeting cellphones. It is well known the NYPD owns and has access to Stingray devices. What these records would show is the use of Stingrays in an untargeted manner -- either to gather cellphone identifiers indiscriminately or simply to disrupt phone service during protests by funneling all phones in the area into the NYPD's cell tower spoofer.

The NYPD has given the plaintiffs a Glomar response -- a term that derives from national security efforts at the federal level. There are a few good reasons why a Glomar might be deployed, but none of them fit the NYPD's blanket refusal to confirm or deny existence of these records.

Although this affidavit provides ample reasons why a FOIL request for counter-terrorism information might merit a Glomar response, it does not provide any explanation for how it applies to this case. This proceeding concerns respondent's alleged efforts to interfere with the cell phones of protesters and Miller fails to address why a Glomar response should be available in the context of protestors. Miller does not claim that these protestors were affiliated with the terrorists he lists in his affidavit, that these protestors engaged in behavior that might be connected to terrorism or that there might be terrorists hidden among the protesters. In fact, Miller does not allege that these protesters engaged in any terrorism-related behavior whatsoever.

The NYPD also claimed the Glomar response was valid because -- and let me see if I can get this straight -- the described deployment of cell tower spoofers against protesters would violate the law. I don't know how the NYPD imagined this stunted, malformed argument might work in court, but I'm sure it didn't think it would only further undercut its Glomar response. Here's the court's response to whatever the hell this assertion is:

Miller appears to insinuate that deliberately using technology to interfere with protestors' cellphones would violate the law. If that were the case then, of course, respondent should be able to deny that records exist because respondent, according to respondent, cannot interfere with a lawful protest. Revealing that the NYPD follows the law would not provide aid or comfort to terrorists.

That's if the NYPD is following the law. If it isn't…

Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.

Even if deployment was lawful and not targeting protesters but still managed to disrupt their service, the NYPD still can't use a Glomar response. The court points out that other exemptions exist that might cover the content of these documents, but even that would need far more justification than the NYPD has provided to this point.

For all its claims of disrupted investigations and comforted terrorists, the NYPD cannot convince the court that records detailing cellphone disruption during protests fits any of the exemptions and/or blanket neither deny/confirm responses the NYPD has provided.

The Court recognizes that respondent does not have to disclose how it conducts criminal investigations. But this is not about a criminal investigation or a counterintelligence operation. It arises from reports of protestors who claim that their cellphones are suddenly unable to function while in the middle of a protest. That possibility, that respondent is interfering with protestors' ability to communicate with each other, is a serious concern ripe for the use of FOIL.

The NYPD is offering nothing more in defense of its opacity than "trust us." The court asks, "Why should we?"

Ultimately, respondent wants petitioners and this Court to simply trust respondent that it is not violating the law by interfering with a constitutionally-protected protest. But that notion is anathema to FOIL. FOIL is intended to shed sunlight on government actions. The very notion of a Glomar response (declining to confirm or deny the existence of records) contradicts the purpose of disclosure under FOIL.

The ruling also pokes holes in another transparency dodge: the "trade secrets" exemption the NYPD offered up more than a year after its original Glomar response. Not only does the court say it's a bit too late to adding additional exemptions to the mix, but the trade secrets exemption argument is a non-starter to begin with.

If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL. Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product. It may lay out what the product is for, what its capabilities are and how it can be used. These are not trade secrets…

After letting the NYPD know it needs to either confirm or deny existence of the Glomared records (and letting it know it will be on the hook for the plaintiffs' legal fees), the court again drills this point home: unjustified invocations of national security concerns are not acceptable.

Terrorism-related concerns cannot be used to justify the use of a Glomar response in every FOIL context. The petitioners here are protestors, engaging in First-Amendment protected activity. The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.

[...]

To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable. That notion runs counter to the very purpose of freedom of information statutes. [...] FOIL is not about blind trust -- it is about holding government officials accountable. That principle is fundamental to a democratic society and cannot be set aside so easily.

The NYPD can't be happy it's been told it isn't a law unto itself. But it's probably going to take a lot more rulings like this to make minute inroads into its culture of opacity.

Filed Under: foil, freedom of information, glomar, nypd, transparency

NY Appeals Court Gives NYPD Even More Opacity By Upholding Its 'Glomar' Powers

from the sure,-there's-nothing-in-the-law-that-supports-this,-but-whatever dept

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.

The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.

C.J. Ciarmella sums up the majority's opinion for Reason.

In a lawsuit brought by two Muslim men seeking NYPD surveillance records on themselves under New York's Freedom of Information Law (FOIL), the state Court of Appeals said the department can invoke the so-called "Glomar response" made famous by the CIA—that is, it can refuse to say whether or not the records exist. Chief Judge Janet DiFiore, in a majority opinion joined by three of her colleagues, accepted the NYPD's argument that disclosing whether or not such records exist would compromise its counterterrorism operations. FOIL, DiFiore writes, "was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature."

This is a dangerous decision [PDF], one that will make an agency already belligerently indifferent to its obligations to the public even more secretive. The NYPD is not a national security agency, so its reliance on a national security-related response granted solely to federal agencies is misplaced. Or it was misplaced. Now it's perfectly fine for the NYPD to act like its the CIA or NSA, despite the fact its investigations and prosecutions are all routed through normal courts, rather than the FISA variety. The dissent (there are two dissenting opinions] points out that denying the NYPD the Glomar response does not mean it has to reveal sensitive information to requesters. But the NYPD has little to offer in support of its supposed "need" for a national security exemption previously utilized only by federal agencies.

The majority’s reliance on federal Glomar doctrine is misplaced. Yes, FOIL was structurally modeled on FOIA. However, as the dissent explains, the Glomar doctrine arises not from FOIA’s law enforcement exemption, but from FOIA’s exemption of documents “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy,” which has no analog in FOIL. The Constitution arrogates national defense and foreign policy to the federal government; the NYPD is not searching for a lost Soviet submarine or worried about the foreign policy consequences thereof. Both the majority and dissent tar their FOIL analysis by referring to the NYPD’s response as a “Glomar” response.

[...]

Those foreign-policy insecurities have no place in New York State’s excellent unified court system. Our government features neither a unitary executive tasked with the national defense nor an elaborate system of classified information to which courts routinely defer. Most CIA endeavors will never see the light of day, let alone that of a courthouse; the destiny of every successful NYPD investigation is to appear before a judge.

The dissent also calls out the majority for its extreme deference to the NYPD's national security hand-waving. There's nothing the NYPD does that is so far beyond the comprehension of the court that it is not qualified to even discuss the underlying issues in FOIL lawsuits.

Regardless of federal courts’ competence to evaluate foreign countries’ changing political climates, we are not similarly handicapped in judging the soundness of FOIL exemptions based on police, privacy, or other justifications. Our courts are fully capable of scrutinizing an agency’s “response on a case-by-case basis to ensure it is warranted under the particular circumstances presented” (majority op. at 16).

As it stands now, the NYPD has been given a gift of federal-level secrecy -- one with zero state-level statutory basis. The NYPD can, in essence, do more than the state's public records law permits. Its national security claims will rarely be challenged successfully because FOIL requesters (who often become FOIL lawsuit plaintiffs) will be hard-pressed to assert standing when they can even prove the requested documents exist.

Filed Under: foia, foil, glomar, neither confirm nor deny, nypd, transparency

NYPD Claims It Can't Find 'Widely-Circulated' Memo That Cut Off Press Access To Precinct Crime Blotters

from the [sound-of-burning-paper] dept

MuckRock is again reporting on a mysteriously missing document -- one that was previously acknowledged to exist but come public records request time, simply can't be found.

A couple of months ago, it was the FBI claiming that a Drone Impact Assessment it had previously "released" in response to an FOIA request (read: redacted in full) suddenly couldn't be located. Now, it's the gold standard of Freedom of Information obfuscation -- the New York Police Department -- claiming the same thing.

In December 2013, the NYPD ordered its 77 precinct commanders to route reporters’ requests for crime reports through the agency’s press office, rather than release these documents directly. So where’s the order itself?

More than fifteen months after MuckRock requested it, the NYPD has a rather familiar answer: we couldn’t find it.

It's not as though the document never existed. The NYPD's decision to deny journalists access to its crime blotters -- something it had allowed for decades previously -- was heavily criticized by a variety of outlets (including this one). The document's existence was even acknowledged by the NYPD's Deputy Commissioner of Public Information, who claimed it was nothing more than a reiteration of previously-existing policy. (If so, then it had never been enforced until the distribution of this suddenly-nonexistent memo.)

But now, more than a year after it was first requested, the NYPD's FOIL response team claims the document everyone was talking about several months ago just isn't there.

In regards to the document(s) you requested, this unit is unable to locate documents responsive to your request based on the information provided.

In addition to the documents MuckRock didn't receive, the NYPD is expected to not answer MuckRock's follow-up question sometime within the next 12-18 months.

MuckRock has emailed the NYPD’s DCPI [Deputy Commissioner of Public Information] to request clarification as to how this order was so widely disseminated throughout the department without being put in writing.

Perhaps the last words of the memo were, "BURN AFTER READING?"

And so, the NYPD continues on in its quest to leave no FOIL request unthwarted. I'd say it has its work cut out for it, but it's already been touted as "worse than the CIA, NSA and FBI" in the Information Doesn't Want to Be Free category. Between its generally frosty exterior and its no-oversight-needed in-house document classification, the NYPD continues to put other reluctant participants in open records laws to shame.

Filed Under: crime blotter, foia, foil, journalism, new york, nypd

NY Court Orders Sheriff To Reveal Details On Stingray Mobile Phone Surveillance

from the finally,-a-victory dept

For quite some time now, we've been covering how various law enforcement agencies have been using "Stingray" (or similar) cell tower spoofing devices to track the public. Beyond the questionable Constitutionality of such mass surveillance techniques, what's been really quite incredible is the level of secrecy surrounding such devices. We've written about how the US Marshals have "intervened" in various court cases to hide info about the use of Stingrays -- and even telling local law enforcement to lie about their use of the devices. We've written about law enforcement officials claiming "terrorism" as the reason for needing Stingrays, but then using them for everyday law enforcement. We've written about the company that makes Stingrays, Harris Corp., forcing police to sign non-disclosure agreements barring them from revealing any info about their use. It also appears that Harris Corp. misled the FCC to receive approval for its mobile tower spoofing capabilities. Some police departments have even withdrawn evidence rather than talk about their use of Stingrays.

Thankfully, there's been growing concern about these devices. Congress has been investigating and now it appears at least some courts are getting skeptical about the use of Stingrays. The New York Civil Liberties Union (NYCLU) has highlighted that a judge in one of its cases has ordered the Erie County Sheriff's Office to reveal information to the public about its Stingray operations. The full ruling [pdf] is worth reading. While denying the NYCLU's claim that the Sheriff's Office didn't conduct a thorough search as required, the judge is not at all impressed by the redactions in the documents that were released:

The purchase orders should have been disclosed in their entirety, without redaction of the various words, phrases, and figures thus far withheld. The purchase orders (and more particularly the redacted words, phrases, and prices), were not "compiled for law enforcement purposes" in the sense meant by the statute but, even if they were, their disclosure would not: "interfere with law enforcement investigations or judicial proceedings"; "identify a confidential source or disclose confidential information relating to a criminal investigation," meaning a particular ongoing one; or "reveal [non-'routine'] criminal investigative techniques or procedures, meaning techniques a knowledge of which would permit a miscreant to evade detection, frustrate a pending or threatened investigation, or construct a defense to impede a prosecution.... Further, the purchase orders (or, more precisely, the information redacted therefrom), although clearly constituting inter-agency materials" (the other agency involved was Erie County and its Office of the Comptroller), amount entirely to "instructions to staff that affect the public".... Indeed, the instructions set forth in the purchase orders—'in essence, "Pay this bill of this vendor for this item purchased by the Sheriff's Office at this price"—was and is of quintessentially compelling interest to and of undeniable impact upon the taxpaying public.

Finally, the Court finds that the purchase orders, and particularly the matters redacted therefrom, are not "specifically exempted from disclosure by state or federal statute" .... The Court rejects respondent's arguments that the disclosure sought here would, if made, violate a particular federal statute, regulatory scheme, and executive order forbidding (and indeed criminalizing) the export of certain sensitive technology without government license or the illicit revelation of sensitive information about such sensitive technology to foreign nationals. The Court instead is convinced by petitioner's argument that the disclosure of public records pursuant to New York's Freedom of Information Law and the within judicial directive -- even records concerning respondent's ownership and use of a cell site simulator device -- does not amount to the actual export of such arms, munitions, or defense technology. Further, the Court is satisfied by showing on this record that petitioner, a New York not-for-profit corporation, is not a "foreign person," meaning that the disclosures sought by it pursuant to FOIL would not in fact run afoul of related federal legal restrictions on the revelation of sensitive technical data about export-restricted arms or technology.

Got that? Basically the court rejects the Sheriff's Office's contention that disclosing this information was somehow "exporting munitions" to "foreign persons."

Oh, as for the non-disclosure agreement with Harris Corp.? The judge notes that a non-disclosure agreement is not a federal regulation:

At the outset, the Court notes its agreement with petitioner's observation that the FBI-drafted non-disclosure agreement is not itself a federal statute specifically exempting anything from disclosure....

In fact, later in the order, the court says that the non-disclosure agreement itself should be disclosed:

Likewise, the Court concludes that this public record ought to have been disclosed in its entirety. As indicated, the agreement was entered into between the FBI and respondent as an apparent pre-condition of respondent's being allowed to acquire and use the cell site simulator. The gist of the letter is not a recitation of the technological capabilities of the device or even the "hows" and "whens" or the advantages of its use for law enforcement purposes, but rather simply the need for the Sheriff's Office to avoid disclosing the existence, the technological capabilities, or any use of the device to anyone, lest "individuals who are the subject of investigation ... employ countermeasures to avoid detection," thereby endangering the lives and safety of law enforcement officers and others and compromising criminal law enforcement efforts as well as national security. The Court has no difficulty in concluding that the agreement (or, more precisely, each redacted-at-length passage of it) was not "compiled for law enforcement purposes" in the sense meant by the statute.... Again, even if it was, the Court would conclude that the disclosure of the non-disclosure agreement would not thwart or prejudice any particular ongoing law enforcement investigation or pending prosecution.... Nor, the Court concludes, would the disclosure of the non-disclosure agreement "identify a confidential source or disclose confidential information relating to a criminal investigation," again meaning a specific ongoing one, or "reveal" other than "routine" "criminal investigative techniques or procedures"....

There's a lot more, including other documents, and all of that leads the judge to also grant attorney's fees to the NYCLU. It will be interesting to see if the Sherriff's Office challenges this, but it's a pretty complete win for transparency in an area that law enforcement has been trying to keep totally secret for quite some time now.

Filed Under: erie county sherriff's office, foia, foil, imsi catcher, new york, stingray, surveillance
Companies: aclu, nyclu

New York City Court Buys NYPD's Claims Of 'National Security,' Grants It Power To 'Glomar' FOIL Requests

from the don't-have-to-confirm-or-deny-jackshit,-citizen dept

A New York City court has given the NYPD one of the few things separating it from the "big boys" (CIA, FBI and NSA): the permission to issue "Glomar responses" (the infamous "we can neither confirm nor deny...") to FOIL (Freedom of Information Law) requests. Like the audacity of the department itself in pursuing this additional method of keeping the public separated from public documents, the decision is unprecedented.

The decision appears to be the first time that a court anywhere in the U.S. has upheld the use of such a tactic by a state agency. The Glomar response has historically been used only with regard to requests made to federal agencies that involve sensitive matters of national security.

That a New York court would find in the home team's favor is perhaps inevitable. The NYPD, along with various officials, have long portrayed the safety of New York City as inextricably intertwined with the safety of the nation itself -- a view partially justified by the city's position as the epicenter of the 9/11 attacks.

But doing so allows a department with a proven track record of open hostility towards FOIL requests another way to abuse its position. On top of heavy redactions, an in-house classification system that has no apparent legal basis, and plain old stonewalling, the NYPD will now be able to simply claim it can't even acknowledge the existence of responsive documents. This shifts the balance too far in its favor.

At the federal level, use of Glomar responses is premised on the argument that there are certain matters of national security that would result in irrevocably harm if divulged to the general public. It has been criticized by open government groups, including the Reporters Committee, because it allows agencies to deny FOIA requests without giving detailed reasons that the requesters can argue against. Once an agency invokes the Glomar doctrine, courts generally afford it great weight and rarely inquire further.

And that's at the federal level, where claims of national security should carry with them a bit more credulousness. The actual "Glomar" in the original "Glomar response" referred to the CIA salvage vessel being used to find a sunken Soviet submarine. These days, it's used to tell FOIA requesters that the NSA can neither confirm nor deny it uses terms like "collect it all," or has compiled any data at all on the requester him/herself.

The NYPD has now been granted a federal power, without having to show its national security claims are valid. If the requested documents do indeed contain information possibly damaging to national security, why isn't there a federal agency involved? It's well known that the NYPD prefers to run a highly autonomous agency -- one that inserts itself into terrorist investigations overseas but openly rebuffs FBI assistance in its own town. But if you're going to claim you may or may not be in possession of investigatory documents with national security ramifications, then you should also be asked to explain why the FBI, DHS or other national agency isn't included on the CC line, and why this federal agency isn't the one kicking out the Glomar response.

Considering the documents currently being Glomared ("...a request by Imam Talib Abdur-Rashid for records regarding NYPD surveillance of himself and his mosque…") are related to the counter-terrorist investigations of the recently shuttered "Demographics Unit," there's a good chance no federal agency would touch them with a 10-foot redaction. The division seemed to pride itself on willful violations of civil liberties, but this methodology turned the (often minimal) fruits of its investigations too toxic for even the CIA to partake in.

So, the NYPD may actually be sitting on something that implicates national security, but it's finding no federal takers thanks to its inability to respect the Constitution or to work well with others. That's a problem. But it's not nearly as much of a problem as being granted a new power to abuse in its quest for law enforcement opacity.

Filed Under: foia, foil, glomar, national security, new york city, nypd

New York State Keeps Government Emails Out Of The Public's Hands With Its 90-Day Retention Limit

from the shredders-and-burn-barrels-have-nothing-on-automation dept

New York Governor Andrew Cuomo's office continues to do everything it can to prevent its emails from being accessed by FOIL (Freedom of Information Law) requests. As Justin Elliott of ProPublica reported earlier this year, Cuomo's office has been making use of personal email accounts to skirt FOIL requests.

Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.

I know because I got one myself. And three other people who interact with the governor's office on policy or media matters told me they have too. None of the others wanted to be named.

This isn't all Cuomo's office is doing, though. It's also set its email retention bar incredibly low. With personal email accounts already removing a certain percentage of communications from the "responsive document" set, the governor's office has moved towards eradicating access to the rest, using an unusually short retention schedule. ProPublica again has the story.

Last year, the state started deleting any emails more than 90 days old that users hadn't specifically saved — a much more aggressive stance than many other states. The policy shift was first reported by the Albany Times Union.

A previously unpublished memo outlining the policy raises new questions about the state's stated rationale for its deletions policy. What's more, the rules on which emails must be retained are bewilderingly complex – they fill 118 pages – leading to further concern that emails may not be saved at all.

The state's policy is supposedly predicated on storage limitations. But this was put into place as part of a move to Microsoft's Office365, which offers 50 Gb of storage per email user. And, as ProPublica points out, the state's version includes unlimited email archiving.

Despite the reality of the storage situation (i.e, that it's not going to ever be a problem), the state still automatically deletes emails when they hit the expiration date. When asked why the state does this when it's obvious it has plenty of email storage space, it delivered this nonsensical response.

The Office of Information and Technology Services declined to comment on the record. An official in the office said even though the state can store large quantities of email, it can still be difficult to manage.

"Just because you have a big house doesn't mean you have to shove stuff in it," the official said.

Yeah, but if this "big house" was actually purchased for you by the public to store stuff it might need later, the purchasers expect you to make full use of the storage space. What it doesn't expect is for you to throw out a large percentage of its belongings (government emails are public records) every 90 days. Policies vary from state to state, with most email being held for two years minimum. Certain categories are held onto for a longer period of time, but rarely, if ever, are government emails given a shorter "sell by" date than the state of New York.

Not everything disappears at 90 days. Some are supposed to be held onto for far longer, but as far as ProPublica can tell, there's no one in place to ensure the numerous and complex retention rules are followed.

There is no internal or external watchdog to make sure the rules are being followed, [John] Kaehny [president, Reinvent Albany] said.

The state also doesn't have a standardized system for preserving emails that do have to be saved, according to the Office of Information Technology Services official. State workers can save their emails by printing them out, pasting them into Microsoft Word documents or placing them in a special folder in the email program itself.

"Everyone does it differently, and some people are still learning how to do it," the official said.

Email related to FOIL requests and litigation is supposed to be preserved indefinitely. But with de facto 90-day destruction in place, journalists and others seeking public records would need to know what they're searching for before the corresponding emails have even been composed. Government misconduct is usually discovered months or years down the road. By that time, most responsive emails will have long since been destroyed, especially when there's no one making sure possibly incriminating communications are retained.

What's being touted as a solution to an email management problem looks an awful lot like an easy way to minimize the number of responsive documents that might be returned to a citizens' rights group or an investigative journalist. Ninety days isn't acceptable as a warranty period, much less a time frame for the retention of public records.

Filed Under: andrew cuomo, deleting emails, emails, foil, freedom of information, new york, transparency

Verizon Responds To Freedom Of Information Request With Hundred Of Fully Redacted Pages

from the could-have-sworn-the-word-'information'-was-in-there-somewhere... dept

Verizon has learned plenty from its close relationship with government intelligence agencies. Its recent response to a FOIL (Freedom of Information Law) request in New York is almost completely composed of black ink. Full pages, three hundred of them, are redacted, with little more than headers and descriptions remaining.

As Elise Ackerman points out at Forbes, this might be a violation of the state's Freedom of Information law.

As the court ruled in a 1996 case known as Gould versus the New York City Police Department, the Freedom of Information Law imposes a broad duty on government to make records available. All government records are thus “presumptively open for public inspection” unless they fall into specific exemptions which must be “narrowly construed.”

The ruling continues: “In keeping with these settled principles, blanket exemptions for particular types of documents are inimical to the Freedom of Information Law’s policy of open government. Instead, to invoke one of the exemptions of section 87(2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents.”

The documents are currently under review to see if the redacted information falls under protections governing trade secrets. It might. A large part of what's being sought here is information that many other telcos and wireless providers would find very interesting.

In September, a group of consumer advocates interceded in a proceeding Verizon had initiated with the New York Public Service Commission to shut down its traditional network, known as the “wireline” network. The advocates were interested in reviewing documents Verizon had filed with the commission about its wireline and wireless build-outs.

Under the state Freedom of Information Law, advocates requested that Verizon provide information about the actual costs and expenses associated with the repair, upkeep and maintenance of the traditional wireline network on the resort community of Fire Island. Among other things, advocates also wanted to know the location of any planned or active offering of Verizon’s wireless Voice Link service in other parts of New York.

Verizon has redacted almost everything requested. While its claims that this information would be extremely beneficial to its competitors are undoubtedly true, that's likely not the only motivation.

Ever since Hurricane Sandy, Verizon has been extremely reluctant to restore services to prior levels. Karl Bode at DSLreports has collected story after story detailing Verizon's efforts to dodge the demands of its paying customers.

Verizon has slowly been expanding the number of Sandy victims they're informing will never see their DSL lines repaired. Fire Island, New York residents who lost service during Sandy haven't had broadband service since last October, and only recently were told that these lines simply won't be repaired…

Instead of power-outage-resilient copper voice and DSL lines, users are pushed toward Verizon's Voice Link, which offers voice service over Verizon's wireless network -- but no data connectivity of any kind.

Before capitulating in September and offering FIOS service on Fire Island (where the most service was lost), Verizon used the damage caused by Hurricane Sandy as an out to switch users to the wireless service it (along with AT&T) would rather be selling anyway -- one with both data and voice caps.

Understandably, New York residents would like to know just how much it's costing Verizon to roll out FIOS, as well as how much it's receiving in insurance payouts compared to the cost of restoring service to its previous levels. Unfortunately, it seriously looks as though these groups will never get the answers they're seeking.

But it's not just costs and insurance details that Verizon's redacting. It's also other, less sensitive, information.

Among other documents, Verizon claimed as a “trade secret” a list of Voice Link deployments, a Voice Link leader’s guide and a document about overcoming customers’ objections to Voice Link and responding to requests to return to copper.

While this may be proprietary information, there's nothing in those documents that couldn't be disseminated with a small amount of redaction. But Verizon is in no hurry to make this info public, considering it would reveal the same talking points it deployed against those behind the FOIL request.

Richard Brodsky, the lawyer representing the many groups seeking this information, claims the data requested is vital to verifying Verizon's statements concerning its decision to not repair existing copper lines.

“We believe that Verizon has substantially misstated the economic realities of both the wireline and the wireless service in order to make the wireline service seem economically damaged,” Brodsky said. “And we believe that the wireless service that they want to substitute does not give telephone consumers what they are legally required to get and what they expect.” Specifically, Brodsky said, Voice Link, which continues to be offered to customers in parts of New York and New Jersey, is voice-only, when many customers need both voice and data services.

That Verizon has a vested interest in pushing people to a service that's cheaper to build out and maintain won't have any bearing on the commission's consideration of its "trade secrets" claim. Unfortunately, in order to prevent FOI laws from becoming tools for corporations to acquire information from their rivals, the commission will probably have to side with Verizon. Verizon knows this and has been busy using the "trade secret" clause as leverage to press the state to allow it to provide even less information in response to requests than it already does.

As it stands now, Verizon will probably be able to walk away from this request with its "trade secrets" intact, much to the detriment of those who suspect the service provider is simply exploiting Hurricane Sandy to push preferred services on customers who have no choice in the matter. This allows the company to both maximize its profits by routing existing customers to a higher margin (and lower utility) service and drastically cut its outlays by allowing it to walk away from repairing damaged lines.

Filed Under: foil, freedom of information, new york, redacted
Companies: verizon