In June 2019, Greenburgh’s SWAT (Special Weapons and Tactics) team was called to assist the FBI in executing an out-of-state warrant at the Ardsley Acres Motel. Instead of an orderly arrest, a wild shootout ensued, resulting in the death of the person for whom the warrant was issued. Two SWAT members were hospitalized with gunshot wounds, one almost fatal. Contemporaneous newspaper articles indicated the Westchester County District Attorney’s (WCDA) office would investigate this deadly encounter.
The webpage for Westchester County’s Special Response Team (a SWAT equivalent) details its expertise in executing high-risk warrants, as was the case in Ardsley, where the warrant’s subjects were convicted felons with a violent history. Yet, why was Greenburgh SWAT, of which little is known and which seemingly had not cross-trained with the FBI unit overseeing the Ardsley matter, brought in? Unfortunately, public scrutiny of what a local official confidentially conceded to this writer was a botched raid was stymied by the WCDA’s Records Access Officer’s refusal to respond to Freedom of Information Law (FOIL) requests about this lethal event.
New York State’s FOIL expresses its commitment to open government. It is intended to be liberally construed and its exemptions narrowly interpreted, so the public is granted full access to governmental records to foster public accountability. FOIL’s overriding policy consideration is that the public is vested with an inherent “right to know” and that official secrecy is anathematic to our form of government. The idea propelling FOIL’s enactment is the tag line underneath The Washington Post’s masthead — Democracy Dies in Darkness.
After months of delay in responding to this writer’s FOIL request for a copy of the investigation report, the WCDA denied the demand because the FBI wrote the report and it was only reviewed by the WCDA. However, under FOIL, it is irrelevant who creates the document being sought. If a government agency has it, they must disclose it.
Although this denial was successfully appealed, it was a pyrrhic victory as the WCDA then asserted the FBI’s report contains sensitive information about an ongoing criminal investigation. When I asked for the documentation sent to the WCDA by the FBI asking it not to disclose the report due to potential future criminal proceedings, the WCDA again stymied disclosure by risibly claiming this routine communication constitutes privileged interagency communications — another evasion of FOIL.
Surely the WCDA’s office is aware New York’s FOIL does not apply to federal agencies; furthermore, FOIL’s “criminal proceedings” exemption only covers materials that reveal investigative techniques or procedures — not routine matters. On what should have been an unnecessary appeal, this week the WCDA relented and provided me with proof I was entitled to. The long sought report of the raid remains under quarantine.
Sadly, the FOIL has a glaring defect — no prosecutorial agency can enforce its terms, allowing governments to ignore its mandate with impunity. Here is a suggestion for the WCDA: post the disposition of all FOIL requests so at least the public knows what is being hidden.
GARY S. RAPPAPORT, Esq.