De Blasio’s FOIL Fail

Judicial Watch’s probe into the murder of NYPD Patrolman Phillip Cardillo is heading back to court in New York. Cardillo was murdered more than four decades ago, but the NYPD has advanced the preposterous legal claim that its investigation is still “active and ongoing” to deny Judicial Watch documents in the case. That’s an extreme interpretation of the state’s Freedom on Information Law, but typical of the assault on transparency underway in New York City under Mayor Bill de Blasio.

Cardillo was shot down in 1972 in Louis Farrakhan’s Nation of Islam Mosque in Harlem. No one ever served a day in jail for the crime. Controversy surrounded the case from the moment bullets flew. Why were suspects released from police custody? Why was the crime scene erased? Why was the FBI quickly on the scene? Why were investigations stonewalled? Who lured Cardillo to the mosque? Who in the political echelon cut a deal with whom, and why?

A suspect was arrested, indicted, went to trial—hung jury—went to trial again, acquitted. The alleged shooter was free—”not guilty” in the eyes of the law—but the NYPD was confident it arrested the right guy. The collar was righteous, but the prosecutions failed due to tainted and withheld evidence. Case closed.

Then, in 2006, NYPD Commissioner Ray Kelly re-opened the case. According to a 2006 letter from the NYPD to the FBI obtained by Judicial Watch, the new investigation was launched “to determine if there is evidence of a conspiracy in 1972” to kill Cardillo. Six years later, the case was closed again. An NYPD spokesman told the Daily News that the new probe was finished and that it “didn’t turn up any useful information.”

That’s when Judicial Watch began requesting documents in the case—and hit a stone wall. Year after year, Judicial Watch’s requests for information were met with silence. In 2017, Judicial Watch went to court, arguing that the NYPD should be compelled to turn over the Cardillo case file and a tape-recording of an anonymous caller luring police to the Harlem mosque.

The NYPD responded by submitting a sworn affidavit that the Cardillo murder—45 years later—is “an open investigation and remains actively pursued.” And that tape recording? Sorry, we can’t find it.

A New York judge accepted the NYPD’s argument. Read a legal update here.

Last month, we filed our appeal. We argued that on the facts and the law, the NYPD was wrong. The NYPD had failed to demonstrate that there is a bona fide “ongoing investigation,” that it had not provided a legitimate legal basis for withholding the Cardillo documents, and that it “is making a mockery” of Freedom of Information laws. Read the Judicial Watch appeal here.

The NYPD is a notorious repeat offender in violations of the spirit and letter of the Freedom of Information Law. If violations of FOIL were criminal offenses, the entire leadership of the police department would be in jail. But there effectively is no punishment for violating FOIL in New York. The Village Voice summarized the situation in a 2017 headline: “In de Blasio’s New York, Transparency Laws Mean Nothing.” Read that story here.

The problems have grown worse. Last month, members of New York’s notoriously competitive press corps came together to send a letter to City Council Speaker Corey Johnson warning that the “functioning democracy” of city government was threatened by an assault on transparency and urging the council to launch an investigation into “the health of the city’s public-records access system.” Among the problems: ridiculously low staffing of FOIL offices, extensive delays, and document “retention” policies that in fact allow documents to be destroyed.

The speaker is not leaping into action. “We will continue to encourage our colleagues in government to improve the Freedom of Information process,” a council spokesperson told the investigative website City Limits. Translation: blah blah blah, get lost.

But while the speaker won’t act, other city council members may be willing to light a fire under the de Blasio administration. In December, council member Ritchie Torres, head of the council’s newly minted investigations committee, declared that de Blasio had made a “mockery” of FOIL and called for a probe into the mayor’s handling of emails in a corruption-related case. Torres has been broadly supportive of FOIL reforms in the past.

Torres called on the city’s Department of Investigations to probe the de Blasio emails case.  But that seems like a non-starter—the department has a tortured relationship with its boss, the mayor. If Torres wants an investigation into freedom of information at City Hall, he should do it himself, with his investigations committee. And if he wants to take on NYPD transparency, there’s a dead cop up in Harlem looking for justice.

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Micah Morrison is chief investigative reporter for Judicial Watch. Follow him on Twitter @micah_morrison. Tips: [email protected]

Investigative Bulletin is published by Judicial Watch. Reprints and media inquiries: [email protected]