Freedom of Information Requests for Traffic Justice


The New York Freedom of Information Law and Traffic Justice

Like the federal government and most states, New York state has enacted a Freedom of Information Law, or FOIL, that requires state and municpal agencies, upon request, to dislose a wide range of internal documents and information, subject to certain exceptions.[1] Traffic justice advocates have long relied on FOIL requests to bring to light the ordinarily-hidden details of traffic crashes and how they have been investigated and evaluated by police and prosecutors. The seminal work on traffic justice, Killed by Automobile by Charles Komanoff, would not have been possible without successful FOIL requests for hundreds of NYPD traffic collision reports.

Although a FOIL request can take months to bear fruit, making and pursuing a request requires a few hours of work stretched out that lengthy period of time. This article describes the basic information necessary to make a successful request for documents from the New York Police Department.

What Records Agencies and Public Corporations Must Disclose

FOIL requires every public agency and public corporation created or forming a part of state or local government to produce all "records" requested by a member of the public that are not otherwise protected against disclosure. FOIL's definition of "records" is broad," and includes "any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."[2]

Although the scope of records subject to disclosure under FOIL is broad, government is not required to create records that would not otherwise exist in order to satisfy a FOIL request.

The Cost of FOIL Requests

A person making a FOIL request can be charged the agency's actual costs associated with responding to the request, with limitations.[3] Agencies may only charge $0.25 per sheet of paper measuring up to 8.5" by 14". Agencies may pass along the actual cost of labor in connection with locating documents, but only if more than 2 hours were spent by agency personnel, or if the agency hired an outside contractor to find or prepare the documents for production. The agency must advice the requestor in advance if there will be labor charges. It will cost a few dollars to send the request letter certified mail, as recommended below.

How to Make a FOIL Request

While some agencies accept FOIL requests by email, requests should be made by certified mail. The receipt provided for certified mail deliveries makes it easier to proof that the request was made on a particular date, should that become necessary. The unique serial number that appears on the green and white postal service certified mail slip used to mail a request should be included in the heading of the request letter, so that it will be clear that the delivery receipt corresponds to the specific FOIL request letter.

FOIL requests to the NYPD should be sent to:

Police Department Legal Bureau
F.O.I.L. Unit, Room 110C
1 Police Plaza
New York, NY 10038

Drafting a FOIL Request


Although it is imiportant for a FOIL request to be clear and comprehensive, there is no particular or special form or language that must be used. A copy of a request upon NYPD for documents related to a crash in December 2006 is available [[streetswiki/freedom-of-information-law/foil-request.pdf|here.]] Another form of FOIL request preapred by the New York civil Liberties Union for use in cases involvingsuspected surveillance is available here.

How to Pursue a FOIL Request

After a FOIL request is sent, some follow-may be necessary. The requester will need to follow to the extent necessary to ensure that:
(1) The request was received and an estimated response date is provided within 30 days;
(2) That the actual response is not significantly delayed past the estimated response date;
(3) That payment to the agency for the cost of copies produced is properly handled
(4) That the response is complete; and
(5) that records have not been improperly withheld.
The tasks necessary to see to these five areas of concern are discussed below. In pursuing your FOIL request, remeber that it is critically important to save all correspondence concerning a FOIL request, and to keep a record of all related conversations.

Confirmation That Request Was Received and Estimated Response Date

NYPD should issue a confirming letter stating that the FOIL request was received and estimating the date on which a response will be made. An example of such a confirming letter is shown [[streetswiki/freedom-of-information-law/nypd-acknowledgment-letter.pdf|here]]. The letter may state that NYPD will take weeks or months to gather the records you request. Unfortunately, it is difficult to expedite the response to a FOIL request. Agencies are required to respond only within a "reasonable time." Unless it can be shown in court that there is an urgent public need for the information, an attempt to shorten the response time is unlikely to succeed. Therefore, in most cases, the requester's only task once a confirming letter is received is to simply be patient.

If you do not receive a confirming letter stating an estimated response date within 30 days of your request, you should contact NYPD to obtain confirmation, even if you have a copy of the certified mail receipt showing that the request was delivered to NYPD. Failure to obtain confirmation of receipt and an estimated response date may result in weeks or months of needless delay.

According to this NYPD webpage, the phone number for FOIL-related questions is (646) 610-5296. When contacting the NYPD concerning the status of your FOIL request, make sure to record the names and dates of all conversations and the substance of what you were told. Also, make sure to obtain from the officer the file number assigned to your FOIL request, and include that number at the heading of all subsequent correspondence. Once you have obtained confirmation that NYPD has your request and plans on responding by within a specified time frame, make sure to send NYPD a letter stating this information using certified mail as described above. This will ensure that any miscommunication is identified and fixed early on.

Failure to Respond by the Estimated Response Date

It is not unusual for NYPD to fail to respond by the estimated response date. If you do not receive a response within a few business days after the estimated response date, call the NYPD FOIL Unit with the File number of your request handy, and ask to know the status. Record the persons, dates and substance involved in the communication. Follow up as necessary until you receive a response. If NYPD has set, and missed, two estimated response dates for your request, try demanding that NYPD issue a letter stating that it will provide the records by a specified date certain.

Payment for Records Produced

NYPD may simply include a bill for the copying charges with the documents they produce in response to a FOIL request, espeically if the amount is small. If the costs are large, NYPD may first advise the requester of the amount, and request payment of the amount in advance, before making the copies.

Completeness of Response

It may be difficult to determine whether the documents you receive in response to a FOIL request are complete. Most or all of the records produced will be pre-printed forms that have the detail;s of the particular crash filled in. As a starting point, compare the documents you receive against those in [[streetswiki/freedom-of-information-law/central-park-collision.pdf|this]]response packet, to see if you received the same forms.
Most crashes involving fatal injuries are investigated by an NYPD Accident Investigation Squad associated with NYPD's Highway District. If there are references to "AIS" officers in any of the documents received, but no forms completed by AIS or Highway district officers, a follow-up request should be made for Accident Investigation Squad documents. You may find other references in the documents you do receive that suggest the existence of undisclosed documents, such as references to witnesses for whom no interview is recorded.

Improper Withholding of Documents

You may suspect that the agency's response withholds information that should have been disclosed. While there are exceptions to disclosure under FOIL (discussed below, "Excpetions to Disclosure"), the law favors disclosure and requesters should not acquiesce in abuse of the exceptions. The letter that comes with the response should specify the deadline for challenging the response by appeal, which in the case of NYPD is 30 days.

Appeals may require involvement of a lawyer. On occasion lawyers or law students working in a "legal clinic" setting can pursue FOIL appeals on a no-fee "pro bono" basis. However, without copies of the correspondence and clear record of oral communications with the agency concerning the request, the lawyer's job will become far more difficult or impossible. It is important to save all correspondence concerning a FOIL request, and to keep a record of all related conversations, in case it becomes necessary to challenge the response of the agency through an appeal process.

Exceptions to Disclosure

The FOIL itself contains a number of specific exceptions to the general rule requiring disclosure. Although there are many potential excpetions, there are three that are likely to arise in the context of a livable streets FOIL request, explained below: the privacy exception, the law enforcement exception, an "internal opinion" exception. The fact that a record subject to disclosure contains information within an exception does not ordinarily mean that the agency can withhold the entire record. Instead, the agency is required to obscure or "redact" the exceptional information and produce the record with the redactions.

The Privacy Exception

The privacy exception to disclosure under FOIL covers information concernining individuals which, if disclosed, would constitute an unwarranted invasion of personal privacy.[4] NYPD may withold the name, addresses and other contact information of persons injured or killed in traffic crashes based on the privacy exception.[5] The identity of individuals not injured in the crash, or of witnesses interviewed in connection with the crash, are not ordinarily excepted from disclosure, their addresses or other contact information may be.

The Law Enforcement Exception

The law enforcement exception to FOIL disclosure covers information that is compiled for law enforcement purposes and which, if disclosed, would undermine or compromise a criminal investigation or law enforcement investigative processes in general.[6] NYPD will withhold information that it determines falls within the Law Enforcement Exception, and indicate in writing letter that such information has been withheld. In the case of routine traffic crashes, where it has been determined that there will be no criminal investigation, or a criminal investigation has concluded and no criminal charges will be pursued, this exception ordinarily will not apply.

The "Internal Opinion" Exception

An agency may have records that reflect the non-final opinions or impressions of agency personnel recorded in connection with a crash, that have not been made public and have only been shared within the agency or with other agencies. In order to promote candid investigation and evaluation of evidence, the FOIL creates and exception to disclosure for records containing such "internal opinions." To ensure that this exception is not applied overbroadly by agencies to prevent disclosure altogether, the FOIL lists four catagories of records that are NOT protected by the "internal opinion" exception": (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits, including but not limited to audits performed by the comptroller and the federal government. [7] If the material sought falls within one of these four categories, it should be produced.

ALSO ON THE LIVABLE STREETS NETWORK




REFERENCES

Each source is referred to by the same number every time it is cited. Please keep citation style consistent.
[1] Public Officers Law Section 84 through 90.
[2] Public Officers Law Section 86.4.
[3] Public Officers Law Sections 87.1(b)(iii), 87.1(c).
[4] Public Officers Law Section 89.2(b)
[5] Public Officers Law Section 89.2(c).
[6] Public Officers Law Sections 87.2(e).
[7] Public Officers Law Sections 87.2(g).

PICTURE REFERENCES

Pictures are cited in the order they appear above. Please keep citation style consistent.
[1]
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