NYPD 24-hour and 90-day shooting incident reports, 2010 to 2014

To Whom It May Concern:

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

All 24-hour and 90-day shooting incident reports completed from January 1, 2010 through December 31, 2014.

These reports are outlined in the NYPD Firearms Discharges Investigation Manual, as well as Procedure No: 212-29 (see https://muckrock.s3.amazonaws.com/foia_files/212-29_Firearms_Discharge_by_UMOS.pdf).

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Shawn Musgrave

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 4, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #2015-PL-1411.

Thank you for your help.

Jonathan David, Records Access Appeals Officer
New York City Police Department
One Police Plaza, Room 1406
New York, NY 10038

Mr. David -

This is an appeal for the NYPD's response to FOIL 2015-PL-1411, in which I requested: "All 24-hour and 90-day shooting incident reports completed from January 1, 2010 through December 31, 2014."

In a letter dated July 29, 2015, the NYPD FOIL office rejected my request in its entirety.

As I outlined in my original request, the reports at issue here are outlined in a number of NYPD documents.

Procedure No: 212-29 in the NYPD Patrol Guide (see https://muckrock.s3.amazonaws.com/foia_files/212-29_Firearms_Discharge_by_UMOS.pdf) directs the Commanding Officer, Borough Investigation Unit/Precinct of Occurrence: "Prepare final report on Typed Letterhead within ninety days of the incident."

The NYPD Firearms Discharges Investigation Manual (see https://muckrock.s3.amazonaws.com/foia_files/2-12-14_MR8743_RES.pdf) directs as follows for each instance: "A final report shall be submitted within 90 days following the incident."

The New York City Police Department Annual Firearms Discharge Report 2013 indicates: "Each shooting investigation is thorough and exhaustive, and includes canvasses, witness interviews, subject interviews, evidence collection, crime-scene sketches and investigation, hospital visits, and firearms/ballistics analyses. Afterwards, all available investigatory results are collated into a Shooting Incident Report and forwarded to the Chief of Department, ordinarily within 24 hours of the incident. [....] A preliminary report (usually written within eight hours of the incident) outlines, as much as possible, the shooting incident; however, the rapidly evolving nature of shooting investigations means information contained therein is unavoidably preliminary."

A 2008 RAND summary of the NYPD's firearm discharge review procedures (see http://www.nyc.gov/html/nypd/downloads/pdf/public_information/RAND_FirearmEvaluation.pdf) summarized: "After conducting an initial investigation of the incident, including administering a breath-alcohol test of all officers involved, the [firearm-discharge investigative team] leader renders an initial report the same day, or at least before the team goes off duty. [....]
The investigation manual requires a final report within 90 days unless, for some reason, that deadline cannot be met, in which case interim reports are required monthly."

The NYPD FOIL office has not claimed inability to find the requested 24-hour and 90-day reports following firearm discharges for 2010 through 2014. Rather, the NYPD errantly claims that these documents are exempt from release under FOIL for a variety of reasons.

All of the cited exemptions are categorically incorrect. No less an authority than the Supreme Court of the State of New York has ruled as much in a case that is virtually identical to the present request.

In January 2009, the New York Civil Liberties Union submitted a FOIL request to the NYPD for 24-hour and 90-day shooting incident reports from 1997 through 2008 (see http://www.nyclu.org/case/nyclu-v-nypd-seeking-access-police-shooting-incident-reports). As you can see from my original request, these are precisely the same documents I seek.

The NYPD rejected that request, claiming that such reports were exempt from disclosure pursuant to:
1) Public Officers Law 87(2)(a), New York Civil Rights Law 50-a(1);
2) Public Officers Law 87(2)(b) and 89(2);
3) Public Officers Law 87(2)(e)(i-iv);
4) Public Officers Law 87(2)(f);
5) Public Officers Law 87(2)(g);

Conveniently, these are the same exemptions by which the NYPD FOIL office has rejected my present request. I will allow Judge Goodman's ruling in the NYCLU case (see http://www.nyclu.org/files/releases/NYCLU%20v%20%20NYPD%20Shooting%20FOIL%20decision%202-14-11.pdf) to address the invalidity of the NYPD's response in my own case:

"The issue is whether the 24-hour and 90-day firearms discharge incident reports are categorically exempt from disclosure under FOIL. After a careful review of the NYPD Firearms Discharge Manual containing the 28 section form for the 24-hour and 90-day firearms discharge incident report, the Court finds that these reports are not categorically exempt.

What is apparent from the NYPD's arguments, is its failure to meet its burden to 'narrowly construe' the exemptions, and establish that the documents fall 'squarely within the ambit of one of the exemptions' (Matter of Gould, 89 NY2d at 275), since blanket exemptions for particular types of documents are 'inimical to FOIL's policy of open government' (id.). Especially where, as here, the documents undisputedly contain both confidential and non-confidential information, the agency [...] must consider the possibility of turning over the documents with a redaction of certain confidential information [...]."

The Court's ruling thoroughly dispatches each claimed exemption, whether that be the deliberative and intra-/inter-agency exemptions, the law enforcement exemptions, or the personnel evaluation exemption.

"In conclusion, with proper redaction of the above-mentioned identifying personal information concerning officers who shot civilians, individuals shot, and witnesses involved and the section concerning recommendations, the firearms discharge incident reports are clearly subject to FOIL disclosure," the Court summarizes. This is not a matter of analogous extrapolation. Rather, the Supreme Court of the State of New York has ruled within the past five years that the requested documents are, again, "clearly subject to FOIL disclosure."

The 2011 ruling likewise dispatches with the NYPD FOIL office's claim in its July 2015 rejection that "redactions cannot be made without extraordinary efforts to determine which investigations are still open, which prosecutions are still pending, which witnesses were promised confidentiality and which investigations have been sealed." By redacting all identifying information, this point is utterly moot.

In light of the above, the NYPD FOIL office must release the requested documents without delay, per the NYPD's disclosure obligations under the FOIL.

Respectfully,
Shawn Musgrave
Reporter, MuckRock

Mr. Jonathan David, Records Access Appeals Officer
NYPD
One Police Plaza, Room 1406
New York, NY 10038-1497

To Whom It May Concern:

I am writing to appeal the NYPD FOIL office's exorbitant charges in response to my FOIL for shooting reports, NYPD FOIL #15PL1411. Not only are the charges quoted unduly excessive, but Lt. Mantellino has failed to provide any basis whatsoever for their calculation. That is, the NYPD has demanded $42,000 for documents already deemed to be resoundingly public by the courts, without showing its work. This is denial of transparency by other means, and is unacceptable.

In a letter dated October 8, your office granted my appeal and remanded my request back to Lt. Mantellino. I believe your acceptance of my appeal was based at least partially on the fact that the Supreme Court of the State of New York already shot down each of the exemptions cited by Lt. Mantellino in denying my request. In a letter dated October 27 (attached), Lt. Mantellino asserts without any support — including the courtesy of a page count — that fulfillment of my request will cost $42,000.

Again, this is denial of transparency along another flank. The New York Freedom of Information Law requires that agencies release records, and that they charge reasonable fees for doing so. As the records in question have been deemed to be categorically public, the NYPD must release them. Lt. Mantellino's latest response is absurd, particularly in light of his failure to substantiate the fee estimate.

As such, I respectfully ask that you direct Lt. Mantellino to fulfill my request without delay. In light of the considerable delay on spurious grounds that fly in the face of both logic and case law, I respectfully request that you furthermore waive all fees for this request. If fees cannot be waived, I ask for a reasonable estimate of fees that follows the statute, and in particular one that itemizes expenses so that I can evaluate its legitimacy.

Respectfully,
Shawn Musgrave