Re:NYPD rejects request for its freedom of information handbook
by DannyBee on Monday February 17, 2014 @12:57AM
(#7250820)
"NYPD are saying that they are legally prohibited from disclosing these documents due to attorney client privilege. Because they are legally prohibited from disclosing these documents, they are exempt from being required to disclose them under the FOIA."
I am a lawyer :)
This is false.
They are not legally prohibited from disclosing this, as they are also the client. They are also not claiming they are prohibited from disclosing it, contrary to what you say. They are claiming they are exempt from disclosing it, i.e. they claim do not have to disclose it, and aren't going to as a result.
They can certainly disclose it if they like. They may not want to, however, because it probably contains things they don't want others to see, probably in the area of "we are doing things we shouldn't be with FOIA requests". The last time the NYPD lost a lawsuit related to FOIA was about releasing records on how often they were profiling, which turned out to be "all the time".
"They could wave their right to attorney client privledge, but that would likely require the consent of every intended recipient of the document, which is a lot of work, and still exposes the NYPD to a large amount of legal risk relative to the risk of not disclosing the document."
This is also wrong.
1. It does not require consent from the intended recipients, only a single person authorized at the department (which would usually include the lawyer who wrote it, as well as the person who rejected this request, along with a cast of probably thousands who could authorize it).
Authorizing release of the document is not the issue here, and they don't claim otherwise. It is quite literally the job of the person who rejected it to authorize the release of these kinds of documents. They simply don't want to release it, because they incorrectly claim it falls into an exception that allows them to withhold it. See above.
2. It exposes the NYPD to no legal risk, unless they are already doing something illegal, and the document discloses that. If you believe otherwise, i'd love to see a single citation to law or case authority that makes you believe otherwise.
Additionally, they are not even claiming they can't release it
"This seems like much more of a case of lawyers being lawyers, and wanting to avoid unnecessary legal risk and costs, then any attempt at not being transparent."
Actually, it seems exactly the opposite, given the actual facts on the ground.
I am a lawyer :)
This is false.
They are not legally prohibited from disclosing this, as they are also the client. They are also not claiming they are prohibited from disclosing it, contrary to what you say. They are claiming they are exempt from disclosing it, i.e. they claim do not have to disclose it, and aren't going to as a result.
They can certainly disclose it if they like. They may not want to, however, because it probably contains things they don't want others to see, probably in the area of "we are doing things we shouldn't be with FOIA requests". The last time the NYPD lost a lawsuit related to FOIA was about releasing records on how often they were profiling, which turned out to be "all the time".
"They could wave their right to attorney client privledge, but that would likely require the consent of every intended recipient of the document, which is a lot of work, and still exposes the NYPD to a large amount of legal risk relative to the risk of not disclosing the document."
This is also wrong.
1. It does not require consent from the intended recipients, only a single person authorized at the department (which would usually include the lawyer who wrote it, as well as the person who rejected this request, along with a cast of probably thousands who could authorize it).
Authorizing release of the document is not the issue here, and they don't claim otherwise. It is quite literally the job of the person who rejected it to authorize the release of these kinds of documents. They simply don't want to release it, because they incorrectly claim it falls into an exception that allows them to withhold it. See above.
2. It exposes the NYPD to no legal risk, unless they are already doing something illegal, and the document discloses that. If you believe otherwise, i'd love to see a single citation to law or case authority that makes you believe otherwise.
Additionally, they are not even claiming they can't release it
"This seems like much more of a case of lawyers being lawyers, and wanting to avoid unnecessary legal risk and costs, then any attempt at not being transparent."
Actually, it seems exactly the opposite, given the actual facts on the ground.