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NYPD must answer FOIL Request - Attorney's fees awarded

Michael Grabell is a journalist employed by ProPublica who sued NYPD because NYPD failed to respond to his FOIL request. The NYPD unlawfully withheld certain documents not properly exempt from disclosure under the Freedom of Information Law (FOIL) (Public Officers Law (POL) §85 et seq).

Mr. Grabell sought information relating to NYPD's purchase and use of a police vehicle known as the Z-backscatter van (Van). "The Van(s) is an unmarked vehicle that contains an x-ray device that can detect drugs, certain bomb-making equipment, and other organic and inorganic matter in vehicles or buildings. The radiation that the device emits does not penetrate its target, but reflects back a visual image."

Mr. Grabell's request sought information that concerned the public's health and safety:

"Petitioner seeks certain records as they would "reveal whether the NYPD has taken steps necessary to protect drivers, passengers and pedestrians from exposure to potentially harmful ionizing radiation". ¶14, Affidavit in Support. Petitioner states in his affidavit, and respondent does not dispute, that: backscatter technology, previously deployed in European Union airports, was banned in 2011, because of health concerns; an internal presentation from American Science & Engineering, Inc., the company that manufactures the Van(s), determined that the Vans deliver a radiation dose 40 percent larger than that delivered by a backscatter airport scanner; bystanders present when the Van(s) is in use are exposed to the radiation that the Van(s) emits; and the Transportation Security Administration recently removed all of its backscatter x-ray body scanners from airports in the United States, because the devices failed to comply with privacy requirements established by Congress. Petitioner also states, without dispute, that each of the Vans costs between $729,000 and $825,000. ¶9, Grabell Affidavit in Support, dated April 8, 2013 ("Affidavit in Support"). Moreover, petitioner maintains, and it is not disputed by the NYPD, that "[t]here may be significant health risks associated with the use of backscatter x-ray devices [as] these machines use ionizing radiation, a type of radiation long known to mutate DNA and cause cancer". ¶5, Affidavit in Support."

Mr. Grabell made a request on February 15, 2012 which was denied on April 18, 2012 on the basis of POL §87 (2) (e) (iv) "in that such law enforcement records, if disclosed, would reveal criminal investigative techniques or procedures." Mr. Grabell appealed on May 15, 2012 pointing out, among other things, that "[w]hile portions of [the records requested] may be withheld or redacted under the statutes [cited], the vast majority of the records are public and can be segregated for release."

Analysis: The Court found that "The NYPD does not defend its denial of petitioner's appeal on the basis of POL §87 (2) (g)(intraagency exemption), either in its memorandum of law, or in the affidavit of Richard Daddario, Deputy Commissioner of Counterterrorism. Accordingly, the court deems the NYPD to have abandoned that exemption as a ground for withholding the documents responsive to petitioner's FOIL request. In any event, petitioner argues that POL §87 (2) (g) applies neither to instructions to staff that affect the public, nor to final policy decisions"

After a conference with the court, the FOIL requests were limited to these six (6) requests:

[1] Summary reports or after-action reports of past deployments of the vans that are not related to any ongoing investigation.

[2] The Department's policies and procedures regarding the Z-backscatter van as well as any training materials.

[3] The final policy decision or interpretation of the law or any legal opinion as to when and in what situations the Z-backscatter van can and cannot be used.

[4] Records sufficient to disclose both the total aggregate cost of the Z Backscatter Vans purchased by or for the NYPD and the total number of vans purchased.

[5] Any tests or reports regarding the radiation dose or other health and safety effects of the Zbackscatter van.

[6] NYPD's final policy governing retention and storage of data generated by the Z Backscatter Vans, and other documents sufficient to disclose NYPD's policies regarding the length of time images are stored or maintained, the process by which images are deleted or destroyed, the number and type of individuals permitted to access stored images, and any restrictions NYPD imposes on the use of the images.

"Despite petitioner's new sharply narrowed requests for documents, NYPD maintains its original objections to their disclosure."


["The premise of FOIL is `that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.'" Matter of Newsday, Inc. v. State Dept. of Transp., 5 NY3d 84, 88 (2005), quoting Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 (1979). The purpose of requiring disclosure of governmental records is "to assist the public in formulating `intelligent informed choices with respect to both the direction and scope of governmental activities.'" Matter of New York State United Teachers v. Brighter Choice Charter School, 15 NY3d 560, 564 (2010), quoting Matter of Fink, 47 NY2d at 571. FOIL requires state and municipal agencies to provide the public with all records pertaining to the agencies' operations, that are not specifically exempted from disclosure. Matter of Whitfield v. Bailey, 80 AD3d 417, 418-419 (1st Dept 2011). The statutory exemptions to disclosure are to be "narrowly interpreted so that the public is granted maximum access to the records of government" (Matter of Data Tree, LLC v. Romaine, 9 NY3d 454, 462 [2007]; see also Matter of Markovitz v. Serio, 11 NY3d 43, 51 [2008]). "[T]he burden of proof rests solely with the [agency] to justify the denial of access to the requested records." Data Tree, LLC, 9 NY3d at 463. In fact, where only a portion of a given document is properly exempt, the agency is nonetheless obligated to produce a redacted version that discloses all the non-exempt information. Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals v. Mills, Inc., 18 NY3d 42, 45-46 (2011); Data Tree, LLC, 9 NY3d at 464. Contrary to respondent's argument that this court should defer to the NYPD's expert knowledge, it is settled law that a court reviewing an agency's failure to disclose requested records owes no deference to the agency's decision, but must "presume that all records of a public agency are open to public inspection…, and must require the agency to bear the burden of showing that the records fall squarely within an exemption to disclosure." New York Committee for Occupational Health & Safety v. Bloomberg, 72 AD3d 153, 158 (1st Dept 2010); see also POL §89 (4)(b); (5) (e); Matter of Markowitz v. Serio, 11 NY3d 43, 50-51 (2008); Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 566 (1986). Such a showing must be made by "articulating a particularized and specific justification for denying access." Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 NY2d 562, 566 (1986); see also Matter of New York State Pistol & Rifle Assn. v. Kelly, 55 AD3d 222, 225 (1st Dept 2008).

Moreover, as in the recent case of Hashmi v. New York City Police Dept (___ Misc 3d ___, 2014 NY Slip Op 24357 [Sup Court, NY County 2014]), this court will not adopt the federal standard as to Freedom of Information requests, as such is not contemplated by this state's current FOIL statute. It is the province of the legislature to change the applicable statute. Thus, as explained above, it is well settled that the starting point for any FOIL inquiry is that the public has the right to know and it is the burden of the government to justify the denial of access. See Data Tree, LLC, 9 NY2d at 463. Respondent NYPD has articulated only two (2) reasons for exemption: (1) the "law enforcement/investigatory exemption" (POL §87(2)(e)); and (2) the "endangerment of life and safety of any person exemption" (POL §87(2)(f)). Both of such exemptions are to be "narrowly interpreted". See Data Tree, LLC v. Romaine, 9 NY3d at 462.]

Analysis: The Court analyzes certain exceptions to FOIL (POL 87(2)(e) and 87(2)(e)(iv) and either forced NYPD to answer or accepted NYPD's response. In response to the request of where these vans were deployed the Court held that "a record of where they have been deployed does not, without more, necessarily allow an inference of locations in which they will not be deployed." Indeed, "The Court does not allow a blanket non-disclosure for manuals relating to the Vans but instead 'the NYPD must redact the documents that are responsive to petitioner's second request, withholding such portions of them as come plainly within POL §87 (2) (e) (iv), and disclose the remainder.' " The Court found that the third request fell within the ambit of POL 87(2)(e)(iv), the fourth request is already, basically, public information and the fifth request must be produced.

As to the Sixth request: "In sum, with the exceptions noted above, Mr. Daddario's affidavit consists largely of repeated, conclusory statements that the disclosure of any records pertaining to the Van(s) would allow would-be criminals to circumvent the Van(s)'s potential effectiveness. However, the standard to exempt a document from disclosure is quite high in that, a party seeking to withhold documents that are sought pursuant to FOIL, must tender a "factual basis" for claiming that the documents come within one or another exemption. Church of Scientology of N.Y. v. State of New York, 46 NY2d 906, 908 (1979). Further, it is well settled that it is the government's burden to justify the denial of access. See Data Tree, LLC, 9 NY 2d at 463."

The Court Awarded Attorneys Fees [POL §89 (c) provides that a court reviewing an agency's failure to disclose documents responsive to a FOIL request may assess attorney's fees and other litigation costs against the agency when the petitioner "substantially prevailed," and "when the agency had no reasonable basis for denying access…."] The reason being that, "[h]ere, the NYPD denied petitioner's request in toto, and inasmuch as the court is ordering the NYPD to provide petitioner with at least redacted versions of documents responsive to four of the five requests in connection with which the NYPD acknowledges that it has documents, petitioner has 'substantially prevailed.' "

Further, "[w]hile the NYPD may have had a reasonable basis for withholding some of the documents that are responsive to petitioner's first five requests, it had no reasonable basis for withholding them all, or for failing to provide some of them in redacted form. Most egregiously, perhaps, it had no reasonable basis, or at least it has not articulated any such basis, for withholding documents responsive to petitioner's fifth request for documents".

The Court concluded that "It is noted that, significantly, respondent NYPD has not disputed the potential health risks inherent in the use of backscatter x-ray technology. While this court is cognizant and sensitive to concerns about terrorism, being located less than a mile from the 9-11 site, and having seen first-hand the effects of terrorist destruction, nonetheless, the hallmark of our great nation is that it is a democracy, with a transparent government."

The public has the right to know.

The Case is In re Grabell v. New York City Police Department, 100580/13, NYLJ 1202714901334, at *1 (Sup., NY, Decided December 9, 2014).

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