[Pnews] Who Does the Freedom of Information Law Protect? Attica and the Code of State Silence

Prisoner News ppnews at freedomarchives.org
Fri May 16 11:44:53 EDT 2014

*Who Does the Freedom of Information Law Protect? Attica and the Code of 
State Silence*

Written by Heather Ann Thompson on Friday, May 16th, 2014

On September 9th, 1971,after months of first trying to get their 
concerns addressed through the system---writing countless letters to 
state officials and appealing to them personally---nearly thirteen 
hundred prisoners took over the Attica State Correctional Facility. 
Hoping to force the State of New York finally to listen, these men 
secured nearly forty guards hostage and then invited outside observers 
as well as the media to oversee the negotiations process. With so many 
men calling so passionately for improvements in their living conditions, 
the Attica uprising was a civil rights protest of the most dramatic sort 
and for four solid days they not only engaged in serious negotiations 
with state officials, but they also had managed to call the nation's 
attention to the need for greater prison reforms.

On the fifth day, however, the State of New York opted to retake this 
prison with a phalanx of almost 600 heavily armed and very angry state 
troopers rather than to continue discussions. This despite the fact that 
the hostages themselves were assuring state officials that they were 
being treated well, and, more to the point, were begging these same 
officials to continue negotiations so that a peaceful end to the 
stand-off could be achieved.

As a result of the state's decision to retake the prison by dropping 
many canisters of blinding tear gas and then shooting literally 
thousands of bullets into such a contained and people-filled space, this 
protest at Attica ended horrifically. Scores of prisoners and prison 
employees were shot to death and hundreds more were severely wounded. 
This had been one of the bloodiest confrontations between the state and 
its citizenry in American history.

And so, for the next forty years those who had managed to survive this 
brutal retaking of Attica, and the families of those who had not, sought 
answers. More than anything they wanted to know what had gone so 
terribly, terribly wrong on September 13, 1971. And, to that end, they 
have fought for decades to access to all state records related to the 
Attica rebellion. A few weeks ago, survivors and victim families were 
newly hopeful that they might finally get access to at least some of 
these records.

Specifically, they were awaiting word on whether they might finally get 
to see volumes two and three of the so-called Meyer Report---the results 
of an investigation that had been commissioned by former New York 
Governor Hugh Carey back in 1975 after a state 
prosecutor-turned-whistle-blower back charged that state officials had 
engaged in a massive cover up of law enforcement crimes committed at 
Attica. Of course the Meyer Report is the tip of the iceberg when it 
comes to the potentially volatile Attica-related records the State of 
New York still holds, but if survivors could finally read the full Meyer 
Report, they would certainly learn much more about what had happened to 
their loved ones back in 1971 than they yet know.

Indeed even getting a hearing on opening this one report had been quite 
a battle. Luckily, though, after months of lobbying New York's Attorney 
General, Eric Schneiderman, he finally agreed that he would try to make 
this report public so that hostage families could finally see what was 
inside. Notably, even this required Schneiderman to ask a judge actually 
to unseal these records, but he seemed game to do just this. And so for 
the last year, various parties argued the issue of whether the Meyer 
Report could be unsealed before one Judge Patrick H. NeMoyer. Needless 
to say the most vocal opponents to opening these records were members of 
the New York State Police.

On April 24, 2014, Judge NeMoyer, finally ruled. Yes, the Meyer Report 
could be unsealed, he said, but only sort of. Although the public could 
now see the previously-sealed volumes 2 and 3, they could do so only 
after these same volumes had been fully redacted, and, as important, 
only after all of evidence in them that had come from grand jury 
proceedings had been completely removed as well.

And so, Attica's victims and survivors will be soon be able to read all 
volumes of the Meyer Report, but these volumes won't have any 
information in them regarding who caused the most serious harm on 
September 13, 1971, nor will they include any of the evidence the state 
had against those individuals that was presented to the Attica Grand 
Jury between 1971 and 1976. In short, the shroud of secrecy that has 
hovered over Attica for the last four decades will remain intact, and 
those most responsible for Attica's atrocities will remain protected. 
Indeed, following the NeMoyer ruling, albeit perhaps coincidentally, 
state officials running the New York State Museum suddenly decided to 
rescind public access to /previously released /Attica-related 
materials---in this case hundreds of artifacts collected by the New York 
State Police at Attica in the immediate aftermath of the uprising there. 
No longer will those who suffered the Attica assault have the 
opportunity to see or sort through the bloody and bullet-ridden clothes 
of their loved ones in that collection, nor the hundreds of handwritten 
letters, photographs, and other personal effects also included in it.

Needless to say, Attica's many survivors are, today, stunned by the 
decision to rescind their access to the materials held by the New York 
State Museum and Archives and they are deeply dispirited as well by the 
NeMoyer ruling. To them, it feels as if the State of New York is, yet 
again, placing the desires of the law enforcement officers who used 
excessive force at Attica back in 1971 above the desperate need of the 
survivors to get closure today. These same survivors are, then, 
disgusted by those who suddenly chose to seal the myriad Attica objects 
at the New York State Museum that previously had been open to them, and 
although they do recognize that it must not have been an easy decision 
for Judge NeMoyer to unseal volumes two and three, they are upset that 
he wasn't willing really to break from the past. To be sure at least two 
judges before him, one in 1977 and another in 1981, had already 
considered this issue and had decided that these volumes must remain 
closed, but very clearly this judge's April 24thdecision was not a 
meaningful departure from those past decisions.

The truth is that the possibility of fully opening the Attica records is 
still most unnerving to the State of New York. As much as the past 
matters to those who survived the assault on Attica, it still matters 
mightily to the State of New York too, albeit for very different 
reasons. Indeed, allowing the public to pour over the thousands of 
memos, reports, letters, conversations, and orders that might explain 
the trauma of September 13th, 1971 is still potentially explosive. 
Thirty-nine people were shot to death at Attica and hundreds more were 
severely wounded there, and to reveal who shot those weapons could well 
cause its own firestorm.

Even though Eric Schneiderman' s office had argued before Judge NeMoyer 
that it was time to release the Meyer Report, the fact is that everyone 
there knew they would still have the right to redact anything too 
potentially inflammatory under the Freedom of Information Laws of New 
York. As it turns out, the Attorney General had actually asked the Judge 
for even greater protections than FOIL offered when he asked NeMoyer, 
essentially, to grant the individuals named in the Meyer Report the 
right to petition personally to have their own names removed from it 
before any public release took place.

Judge NeMoyer didn't grant this request but, in key respects doing so 
was unnecessary. Despite President Lyndon Johnson's great trepidation 
when he signed the Freedom of Information Act (FOIA) into law in 1966, 
since that key victory for the American people not only has the federal 
FOIA act been amended an further limited, but so have state Freedom of 
Information Laws across the nation. In 1974, 1976, 1982, 1986, 1996, 
2001, 2002 and 2009, the FOIA was whittled away and, today, citing 
"privacy" or "security" protects almost any governmental document from 
public view.

But what about protecting the public's right to know? What about the 
right of prisoner Kenny Malloy's family to know which New York State 
Trooper it was who shot out his eyes as he lay there already bleeding to 
death from bullet holes pumped into him just minutes earlier? What about 
the right of Attica hostage Edward Cunningham's kids to know who was 
wielding the shotgun rifle that sent .oo pellets though his head that 
then travelled and severed his cervical spinal cord? And what about the 
general public's right to know why it was that even though all of the 
gunshots fired at Attica had been caused by state troopers and state 
correction officers, not one single trooper or CO stood trial for the 
killings and woundings that resulted from their shots? Does the public 
not have a right to know why state-hired investigators and state-funded 
prosecutors spent many years and millions of dollars of state funds 
looking into what had gone so wrong at Attica and yet none of those 
state employees who had caused the harm there---from the most senior 
state officials to the most junior police or correction officers---were 
ever held accountable?

Despite this nation having myriad Freedom of Information Laws, 
apparently the public does not have much right to know anything. This 
however, will not stop the public from knowing. The thing about the past 
is that it rarely can remain hidden and thing about secrets is that they 
rarely can be kept. The horrific retaking of Attica simply left too 
thick of a paper trail and simply had too many participants---many of 
whom are now determined, finally, to unburden themselves---for this past 
to stay sealed in the past forever. With or without FOIL on their side, 
the Attica survivors are going to know the full truth of all that 
happened back on September 13th, 1971. Count on it.

/Heather Ann Thompson is a professor of History in the departments of 
African American Studies and History at Temple University. She writes 
regularly on the history as well as current policy implications of mass 
incarceration and is currently completing the first comprehensive 
history of the Attica Prison Uprising of 1971 and its legacy for 
Pantheon Books./

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