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

May 16, 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 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. It was one of the bloodiest confrontations between the state and its citizenry in American history.

For the next forty years, those who managed to survive this brutal retaking of Attica, and the families of those who did not, sought answers. More than anything, they wanted to know what had gone so terribly wrong on September 13th, 1971. And, to that end, they fought for decades to access to all state records related to the Attica rebellion.

Until a few weeks ago, that is, when 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 was commissioned by former New York Governor Hugh Carey back in 1975 after a state prosecutor-turned-whistle-blower charged that state officials engaged in a massive cover up of law enforcement crimes committed at Attica. Of course the Meyer Report is the tip of the ice berg 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 happened to their loved ones back in 1971.

Indeed, even getting a hearing on opening this one report was quite a battle. Luckily, though, after months of lobbying New York’s Attorney General, Eric Schneiderman, he agreed to try to make the report public so that hostage families could finally see what was inside. Notably, even this required Schneiderman to ask a judge to unseal the 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 two and three, they could do so only after these same volumes had been fully redacted, and only after all of the 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 13th, 1971, nor will they include any of the evidence the state had against those individuals that it 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.

Attica’s many survivors are, of course, 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 today for closure. 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 what happened at Attica remains hidden. 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 this judge’s April 24th decision 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 also still matters mightily to the State, albeit for very different reasons. Allowing the public to pore 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; 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, everyone there knew they would still have the right to redact anything too potentially inflammatory under the Freedom of Information Laws of New York. And 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 names removed from it before any public release.

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, ever since that key victory for the American people, not only has the federal FOIA act been amended and 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 traveled 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 were 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 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 the 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.

Photo: Zinnedproject.org