Separate and apart from our representation of clients on DWI cases, we have a long-standing interest in government transparency. By that, we mean that we think government agencies should be required to make information available to the general public about their activities and work. New York has a legal mechanism for this disclosure called the Freedom of Information Law. It is commonly called “FOIL”. As part of this effort, we have recently started to seek information from the NYPD about it breath testing program, specifically, all of the calibration, maintenance and repair records for the breathalyzer machines used throughout New York City – the Intoxilyzer 5000EN. Due to the NYPD’s steadfast refusal to disclose this information, we are taking the battle to the courts.
We started this process during the summer of 2012 by sending a FOIL letter to the NYPD asking for the information. The letter went certified mail so we could track that it got received by the police department. After a few weeks (longer than permitted under the law), the NYPD responded that it would not produce the materials. We then submitted a letter seeking an administrative appeal of the decision to not provide any information. Under the law, we are required to “exhaust” our administrative appeals before going to court. The NYPD responded (again later than permitted under the law) that it would not produce the information because: (1) it touched on ongoing investigations; (2) would show investigative techniques; (3) would be unfair to other defendants because it would give us a competitive advantage; and (4) would disclose intra-agency deliberations. In short, the NYPD threw every excuse at us other than the actual kitchen sink.
At this point, we have just completed drafting an Article 78 petition to sue the NYPD for the information. We have prepared an exhaustive application and memorandum of law that we believe will show the NYPD’s actions to be unreasonable. When successful, which we fully expect to be, we plan to post all of the calibration, repair and maintenance records on our website for public access.
The information that we are seeking should not be secret. In fact, other states like Florida and Washington, routinely post the material on their official law enforcement agency websites. While New York pretends to be a bastion of progressivism, it has one of the most regressive breath testing programs in the entire country. Worse still, we believe that it does not want to have public disclosure about the breath machines used (particularly in New York City) because it will show that the machines regularly go out of operation for no reason and are returned to service with no record of repair or explanation. If a doctor told you that a loved one had cancer but the machine used for diagnosis goes out of service occasionally for no reason, and is returned to service without repair, you would want a second opinion with a test done on a reliable machine. We believe that the same routine happens in New York City and that the public has a right to know about it. The NYPD thinks otherwise.
We will keep you posted on our progress . . .