The New York Police Department (NYPD) is keeping secret its manual that instructs officials how to process freedom of information requests, claiming the materials are not covered under the state’s Freedom of Information Law (FOIL).

This twist of legal logic was discovered by Shawn Musgrave, a reporter for MuckRock, which specializes in freedom of information requests.

Musgrave wrote to the NYPD asking for its written guidelines on how freedom of information requests are handled. The NYPD refused to turn over the information.

Musgrave then filed an appeal with the department. And again, it said no. The response to the appeal included an explanation that said the manual is protected under attorney-client privilege.

Jonathan David, the records process appeals officer who rejected Musgrave’s appeal, wrote that the manual constituted “confidential communications between members of the FOIL unit and their attorneys in the context of the providing of legal advice concerning the meaning and requirements of the Freedom of Information law.”

David also claimed that “preparation of these records called upon attorneys to apply the skills and talents of an attorney, making these records attorney work product.”

According to Musgrave, only materials prepared for litigation are protected from disclosure. He cited a 2001 opinion from the New York Committee on Open Government (COOG) that said attorney-client privilege applies “only when records are prepared solely for litigation.”

COOG’s executive director, Robert Freeman, told The Washington Free Beacon: “Legal advice is something that can be accepted, rejected, or modified by the boss. When it is adopted by the decision maker, it’s no longer legal advice, it becomes the policy of the agency. There are any number of circumstances where similar kinds of documents have been made public via FOIL requests.”

The newspaper also reported that “the NYPD is notoriously bad at complying with Freedom of Information requests,” noting its refusal to release weapons discharge reports even after being told a court to do so.

Prior to becoming mayor, Bill de Blasio publicly criticized the NYPD’s lack of transparency. A report prepared when he was New York’s public advocate showed the department routinely ignored about 30% of all public records requests.

Bill Bratton, who recently was named commissioner of the NYPD, has said he also wants to see more transparency in the department. “We are going to do more to open up the organization, to make it more inclusive, to make our information more readily available to the public, and to try and format it in a way that is more easily retrievable,” he told the Citizens Crime Commission in February.

-Noel Brinkerhoff

To Learn More:

NYPD Counsel Doubles Down, Rules Freedom of Information Manual Is Confidential (by Shawn Musgrave, MuckRock)

NYPD Denies Freedom of Information Request for Freedom of Information Handbook (by CJ Ciaramella, Washington Free Beacon)

Two Most-Sued Cops in New York Cost City $1.9 Million in Payouts (by Noel Brinkerhoff, AllGov)

Bystanders Hit by Police Bullets in New York City Get Little Sympathy and No Compensation (by Noel Brinkerhoff and Danny Biederman, AllGov)