by Tim Cushing
Techdirt. / 2017-05-30 21:14
New York’s court system is finally pushing back against the NYPD’s refusal to provide better accounting of its forfeiture programs. Late last year, the NYPD informed people requesting information on seizures it had no way of compiling this data for them. Its $12 million software — meant to provide "cradle-to-grave" tracking of seized property — apparently couldn’t handle routine inquiries about seizure totals.
When the NYPD did decide to talk about its forfeiture operations, it used incomplete and misleading numbers. It claimed to have forfeited only around $12,000 in 2015, something miles away from the $69 million estimate of seized cash-on-hand others had cobbled together using info the NYPD had managed to turn over. According to numbers the NYPD said its software couldn’t compile, the department had generated $6 million in revenue in 2015 alone.
The Bronx Defenders, a group of public defenders, has been trying for nearly four years to force the NYPD to turn over documents related to its forfeiture programs. The NYPD has a few of these, including an unofficial program that turns personal belongings into "evidence" upon arrest and forces those with dismissed charges or acquittals to jump through a number of time-consuming and expensive hoops to reclaim their belongings — which include things like cellphones, cash, credit cards, and prescription medication.
The NYPD’s refusal to cooperate with the Bronx Defenders’ FOIL request has led to a lawsuit. The city moved to have it dismissed, but Judge Arlene Bluth doesn’t see much merit in the NYPD’s arguments. Or actions.
Displeased by what she described as the New York City Police Department’s “troublesome” litigation tactics, a judge advanced a lawsuit that asks what happens to millions of unclaimed dollars seized in civil forfeitures.
Rejecting a motion to dismiss the case in Manhattan Supreme Court, Judge Arlene Bluth accused the NYPD and its former Commissioner Bill Bratton on Friday of playing games to avoid disclosures.
In the dismissal of the city’s motion, the judge criticizes the NYPD for its constant claims its software can’t provide the information the plaintiffs are seeking. The plaintiffs have pointed out they don’t need aggregate data. They’re willing to take raw data, copies of original documents, or whatever else might allow them to get a better handle on the forfeiture programs the NYPD doesn’t want to discuss. The NYPD, however, keeps pointing at its expensive (but apparently worthless) PETS (Property and Evidence Tracking System) software and shrugging.
The judge points out [PDF] that the NYPD has pushed the Bronx Defenders into a catch-22 in hopes of keeping this information from being made public.
Respondents have effectively changed their argument from stating that no responsive documents exist to insisting that producing the information would be too burdensome. This argument directly relates to a troubling assertion by petitioner that respondents refused to confer with petitioner about the way in which these records are kept. 21 NYCR 1401.2(b)(2) requires the records access officer to "assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records." It is obvious that it would be necessary to assist a petitioner seeking records from a database under the complete control of the agency and a database not available for public use.
Otherwise, petitioner is forced to make requests without any knowledge of the capabilities of the database. That is what has occurred here. Respondents do not directly contest this point in their reply to the cross-motion and simply assert that they have no duty to solicit additional information about the requests. While that might be true, there is a difference between soliciting more information and assisting the requestor in reasonably describing the records sought especially, where, as here, the records are kept on a specialized database.
In other words, the NYPD is claiming requesters must know all the nuances and intricacies of a database they’re never allowed to access. If they don’t, then the NYPD is under no obligation to assist them in any way. This is a common government tactic and not solely limited to the NYPD, although this agency has been referred to as worse than the FBI, CIA, and NSA when it comes to FOI responsiveness.
Judge Bluth goes on to state the NYPD’s actions have been, at best, disingenuous.
The record before this Court shows that respondents have only now, more than two years after petitioner’s FOIL request, attempted to describe the ways in which these records are kept. This type of "gotcha" litigation tactic is especially troublesome in a FOIL proceeding where petitioner does not have access to the database containing the requested information. Respondents’ claims about the burdensome nature of producing individual invoices clearly demonstrates the purpose of assisting a requestor–it is consistent with the spirit of FOIL to let a requestor know how records are kept so that the petitioner can conform requests to receive the information sought and try to avoid unduly burdening an agency.
The NYPD has long shown it has no interest in following the letter of FOIL law, much less its spirit. For requesters, this means the path to responsive documents often leads through home team courtrooms. It’s a trip not many are willing to make and the NYPD knows it.