Tuesday, July 6, 2010

Adventures in Transparency or What a Difference a Federal Subpoena Makes

Manhattan District Attorney Cyrus R. Vance

I have watched with some envy, perhaps a lot of envy, as attorney Michael L. Spiegel has battled with the Manhattan district attorney over access to records he subpoenaed as part of three federal civil rights lawsuits he brought in 2009 on behalf of four men who were busted by vice cops for prostitution in a porn shop and a spa.

Spiegel’s theory, as described by Judge Shira A. Scheindlin in a June 22 order, is that “their arrests were not only baseless, but were part of an unconstitutional program by New York City to pursue nuisance abatement lawsuits against businesses by making false arrests for prostitution at the business sites, then using the facts of those arrests to bolster the City’s efforts to close those businesses.”

To show such a program, Spiegel needs more than just his clients’ arrest records so he sought documents from two investigations into the arrests done by the district attorney -- one by the Official Corruption Unit and the second by attorneys in the Trial Division. The district attorney objected.

On June 22, Scheindlin largely gave Spiegel everything he sought allowing limited redactions to the records. Given my experience with Freedom of Information requests sent to the district attorney, it was refreshing to see that one branch of government takes transparency seriously.

Before Scheindlin issued her order, I made a Freedom of Information request to the district attorney seeking some of the same records that Spiegel sought. I was not at all surprised when I was granted access to just three pages of records out of the dozens I sought.

In 2008, when Gay City News first reported that at least 30 men had been busted on prostitution charges in at least six Manhattan porn shops, I made a Freedom of Information request to the district attorney seeking all criminal complaints alleging prostitution by men in Manhattan in 2008. The district attorney’s office, then under Robert Morgenthau, denied me access to every single complaint saying in 2009 that they were the subject of a “pending DANY investigation.”

What I knew then was that at least 179 men had been arrested for prostitution in the police department’s Manhattan South unit, which ranges from 59th Street to the bottom of the island. I assumed, with some doubts, that every one of the 179 arrests was being scrutinized. As Spiegel tussled over his subpoena, the district attorney made filings this year in federal court that described the scope of the two investigations. Together, they reviewed, at most, 37 arrests and the real number is probably closer to 20 with the two investigations weighing at least some, perhaps all, of the same arrests. While 20 percent, at best, of the prostitution complaints against men were being investigated, the district attorney used the pretext of the investigation to deny me access to all those records. Did the district attorney’s office lie to me? Perhaps. There may have been another reason for this subterfuge.

When Assistant District Attorney Sarah Hines first responded to my 2008 request, she wrote that she was trying to find a “practical and feasible way” to fulfill my request. In other words, she had to figure out how to separate the hundreds of complaints alleging prostitution by women from the far smaller number charging men with that crime without reading every complaint. The district attorney was being lazy. But that’s not all.

I have from time to time sent Freedom of Information requests to the city’s five district attorneys seeking criminal complaints alleging public lewdness against men. I do this to assess the extent to which the New York City police department is targeting gay and bisexual men for arrest in cruising spots. Alone among the city’s five district attorneys, the Manhattan district attorney has consistently denied me access to pending cases and blacked out the names of the men arrested to prevent me from speaking to them. The consistent figure in these denials has been Patricia J. Bailey, chief of the Special Litigation Bureau, the same unit that handled Spiegel’s subpoena.

It is apparent that Bailey possesses the mindset that sees New York’s Freedom of Information Law as a threat to the bureaucracy that has nurtured her career since 1986. Knowing this, and given that Manhattan had a new district attorney in Cyrus Vance, I decided to try an end run around her.

When my Freedom of Information request for some of the records that Spiegel had subpoenaed was denied, as I fully expected it would be, I sent an appeal to Bailey with a copy to Vance. At his home.

I laid out the recent history with Hines and the longer, more troubling history with Bailey. In closing, I told Vance that it was “past time that your agency obeyed the provisions of the Freedom of Information Law.” Apparently, he disagrees. On June 11, my appeal was denied in its entirety. I have heard nothing from Vance.

I had hoped that with Vance’s 2009 election that there would be more sunshine coming from the Manhattan district attorney’s office, but it appears that will not be the case.

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