Trying to find out how much property and cash is seized through civil forfeiture and how that money is used by the seizing agency can make you feel like a mouse caught in a maze. But, that could soon change. Manhattan Supreme Court Judge Arlene Bluth criticized the New York City Police Department’s (NYPD) deceptive litigation tactics in a Freedom of Information Law (FOIL) case in a decision rejecting the city’s motion to dismiss.
Judge Bluth wrote:
The record before this Court shows that respondents have only now, more than two years after petitioner’s FOIL request, attempted to describe the ways in which these records are kept. This type of ‘gotcha’ litigation tactic is especially troublesome in a FOIL proceeding where the petitioner does not have access to the database containing the requested information. Respondents’ claims about the burdensome nature of producing individual invoices clearly demonstrates the purpose of assisting a requestor—it is consistent with the spirit of FOIL to let a requestor know how records are kept so that the petitioner can confirm requests to receive the information sought and try to avoid unduly burdening an agency.
The lawsuit was filed in August 2016 by the Bronx Defenders after the NYPD took more than a year and a half to produce a record of accounting for assets seized by the NYPD. Despite the Bronx Defenders requesting 40 documents, the NYPD turned over just two accounting summaries and a copy of the NYPD patrol guide. Nevertheless, the documents already turned over revealed that the NYPD may secretly be sitting on millions of dollars in forfeiture funds.
According to the Bronx Defenders:
The accounting summaries show that in 2013 the NYPD reported over $6 million in revenue from seized cash, civil forfeiture revenue, and property sold at auction. The documents also show that the NYPD had a balance of over $68 million in seized currency in any given month in 2013.
Unfortunately, the NYPD’s lack of transparency is not unusual. According to the Institute for Justice report, Forfeiture Transparency and Accountability, eight states have no known forfeiture records resulting in zero transparency or accountability for their forfeiture programs. Nineteen states keep agency-level forfeiture records but do not publish them online nor officially declare them public records, meaning that records may be difficult to identify—and that law enforcement agencies may try to deny freedom-of-information requests for their release.
However, many states are beginning to reform their forfeiture laws to make record keeping more transparent and accountable to public scrutiny. In 2017, Arizona, Iowa, and Mississippi passed new laws with stricter reporting requirements, with a reform bill in Colorado currently awaiting the Governor’s signature. Ultimately, though, civil forfeiture should be abolished all together.