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Freedom of Information Law (FOIL) - The NYPD may not pass the costs associated with reviewing or red

Policy Body Cameras have become integral to law enforcement and police accountability. The New York City Police Department (NYPD) commenced a pilot program utilizing these body cameras. In Matter of Time Warner Cable News NY1 v New York City Police Dept. (Aug. 1, 2016, New York County), news reporter Courtney Gross, sought access to the video recordings taken in conjunction with the program during five week-long periods pursuant to the Freedom of Information Law (FOIL). She sought footage from December 5 through 12 of 2014, January 16 through 23 of 2015, February 20 through 27 of 2015, March 13 through 20th of 2015 and April 3 through 10th of 2015.

The response from the NYPD was that it was "not possible to provide [petitioner] with unedited video files because the recorded videos, which depict interactions between police officers, supervisors, and individuals..." citing exemptions contained in Public Officers Law §§ 87 (2) (a), (b), (e), (f), (g), (i) and 89 (2) in support of the denial. The NYPD indicated that the body camera footage could be reviewed to provide non exempt footage, but that would be costly...

Interestingly, the NYPD, instead of denying her request, seemed to want to charge an exorbitant amount of money to produce the footage. While this might not be a problem for Time Warner Cable, it may prove to be for citizens of ordinary means:

According to the NYPD, the request amounted to an estimated 190 hours of footage consisting of 1576 separate interactions between the police and members of the public. The NYPD, at each stage of the review process for the request, refused to provide unedited video recordings, citing numerous exemptions, privacy concerns and the burdens associated with making necessary redactions. At one stage of administrative review, the NYPD offered to conduct review and redactions of the video footage, provided that petitioner pay $36,480 in advance to cover the costs involved.

An Article 78 was commenced. Like many other FOIL requests, administrative appeals and denials, this FOIL request resulted in an Article 78, a proceeding in a New York Supreme Court, because of the failure on behalf of the Respondents, the NYPD, to provide the footage without the above mentioned costs.

The Court, Justice Kathryn Freed, eloquently describes why such video and, more importantly, public access to such video should be accessible via FOIL, the public's right to know:

Video recordings of police interactions with members of the public have been at the forefront of public debate on police officers' use of lethal force, most notably against black men and other persons of color. Alton Sterling; Philando Castile; Tamir Rice; Walter Scott; Michael Brown; Eric Garner; Kajieme Powell and others: crucial moments preceding each of their deaths at the hands of police officers were recorded on video, released to the public and subjected to widespread scrutiny. The videos sparked public debate, outrage, riots and further violence, including violence against police offers. Many individuals, for example, some of those participating in the national Black Lives Matter movement, take the position that the videos are examples of violence routinely meted out against persons of color without justification, either intentionally or as a result of subconscious racial bias that police officers are inadequately trained to overcome (or, perhaps, in some jurisdictions, is nurtured through targeted policing of communities of color). Equally relevant is the extent to which recordings may show that the actions of police are justifiable when viewed in light of their reaction to perceived imminent personal danger. Regardless of the precise conclusions that may be drawn from any particular video, it is beyond dispute that recordings of police interactions with members of the public have allowed a fuller discourse on the role of local police in the United States. In resolving this petition, this Court need not decide what meaning can be gleaned from any particular video or whether society must accept a more militarized police force as an inevitability. The public discourse on those issues will continue to play out. The focus of this petition is, instead, the extent to which FOIL permits a news station to demand that the footage recorded pursuant to the NYPD's BWC program be made available to inform that discourse.

One should read the decision for a more in-depth analysis of the exemptions; however, in evaluating whether the production of such material is unduly burdensome and whether the NYPD has to undertake the efforts to review and redact such material, the Court holds that "there is an issue of fact presented by the papers regarding amount of time it should reasonably take the NYPD to review and redact the video footage." Still,"[t]he NYPD may not pass the costs associated with reviewing or redacting the footage requested onto petitioner."

The New York Law Journal reported that The judge set a conference for Sept. 7 for the parties to schedule a date for a public hearing on issues raised by the suit including but not limited to "the issues of the NYPD's current technology, the costs of associated with procuring software that would make performing necessary redactions possible and the extent to which that software would decrease the time required to perform the redactions."

The case is Matter of Time Warner Cable News NY1 v New York City Police Dept. (Aug. 1, 2016, New York County).

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