FILED: NEW YORK COUNTY CLERK 01/13/2016 02:30 PM NYSCEF DOC. NO. 1 INDEX NO. 150305/2016 RECEIVED NYSCEF: 01/13/2016 3. In order to make the BWC footage available to its viewers, requested a sampling of footage recorded through the BWC Program pursuant to FOIL. 4. The NYPD denied ?3 request for unedited footage without Specifying What material it plans to redact, how much material will be excluded from disclosure, or how the redaction will be performed. Instead, Respondents suggested that they may provide with edited footage, but only on the condition that remit $36,000.00, the alleged cost to the NYPD of performing its unidenti?ed redactions. 5. FOIL does not permit public records to be withheld absent a full explanation of the materials that are exempt from disclosure. FOIL also does not permit agencies to levy any charge for review and redaction of records (let alone a $36,000.00 charge). As a result, the response to NYI ?s request violates FOIL. 6. Indeed, the response to NYI ?5 request for footage runs counter to both the public policy of openness underlying FOIL, as well as the purported transparency supposedly fostered by the BWC program itself. 7. Having exhausted its administrative remedies, petitions the Court to order the NYPD and Commissioner, Bratton to comply with their obligations under FOIL by providing with the requested BWC footage, without charging fees for the review and redaction of those records. Because the fees demanded by the NYPD have no basis in law, also requests that the Court award its reasonable attorneys? fees and costs in connection with this proceeding. I 8. has not made any previous application to this or any other court for the relief requested herein or for any similar relief. 9. Petitioner NYI is a cable news television channel that provides 24?hour news coverage focusing on New York City. 10. Respondent NYPD is a law enforcement agency administered under Title 14 of the New York Administrative Code. The NYPD is a public agency subject to the requirements of FOIL. 11. Respondent William J. Bratton is a public officer who is named in his of?cial capacity as Commissioner of the NYPD. The Body?Worn Camera Pilot Program 12. In December 2014, the NYPD launched the BWC Program, which tests the use of BWCs by NYPD of?cers. Body? Worn Cameras in NYC: An Assessment ?s Pilot Program and Recommendations to Promote Accountability, Mark G. Peters and Philip K. Eure, New York-City Department of Investigation, Of?ce of the Inspector General for the NYPD (July 2015) at i, available at body~camera~report.pdf. 13. Under the BWC Program, 54 BWCS were put into use across six police precincts in New York City. Id. - 14. The stated purpose of the Program is visually and audibly record speci?c categories of interactions between uniformed members of the service and the public and to retain associated video for a period of time.? Id. at App?x A (Operations Order 48, Issued Dec. 2, 2014). 15. A joint statement on the BWC Program issued by Mayor Bill de Blasio and Public Advocate Letitia James underscored that the Program ?will provide transparency, accountability, and protection for both the police of?cers and those they serve . . . Joint Statement of Mayor de Blasio and Public Advocate James on the Police Department?s Launch of the Body Camera Pilot Program (Sept. 4, 2014), available at mayor/news/429? launch?of. NYl?s FOIL Request 16. On April 10, 2015, reporter Courtney Gross sent a letter to the Records Access Of?cer of the FOIL Unit Legal Bureau. Ms. Gross requested video footage from the BWC pilot program in accordance with FOIL. Specifically, Ms. Gross?s request asked for unedited video ?les from the BWC program for the following weeks: December January 16-23, 2015 February 20-27, 2015 March 13?20, 2015 April 3?10, 2015 A true and correct copy of Ms. Gross?s letter is annexed to this Petition as Exhibit A. Denial of NYl?s FOIL Request 17._ On April 27, 2015, Lt. Richard Mantellino, the RAO at the Legal Bureau of the NYPD, responded, to ?s FOIL request. That response stated that no ?determination [could] be rendered? on ?8 request because ?further review? was required ?to assess the potential applicability of exemptions set forth in FOIL, and whether the records [could] be located.? He estimated that ?this review will be completed, and a determination issued, within 90 business days of this letter.? A true and correct copy of Lt. Mantellino?s letter is annexed to this Petition as Exhibit B. 18. On August 4, 2015, Lt. Mantellino wrote ?in further response? to Ms. Gross?s April 10, 2015 FOIL request. At that time, he rejected the request for unedited video files, stating that ?the recorded videos . . . contain information that if disclosed, would constitute an unwarranted invasion of the privacy of numerous individuals; (ii) is con?dential and relates to a criminal investigation; could endanger the life or safety of a person or persons; (iv) constitutes non-disclosable intra? or inter-agency communications; if disclosed, can impair the security of the information technology systems; or (vi) is otherwise exempt from disclosure pursuant to statutory law.? A true and correct copy of Lt. Mantellino?s letter is annexed to this Petition as Exhibit C. 0 19. Although the August 4, 2015 letter purported to invoke various exceptions under the FOIL statute, the letter indicated that, as of that date, the requested footage had not even been reviewed to determine that any exceptions were in fact applicable: ?Should [Ms Gross] wish to obtain copies of non-exempt footage contained in recordings made during the time periods listed in the FOIL request, the recordings would have to be reviewed in real time by trained personnel in order to locate and copy non?exempt footage.? Exhibit (emphasis added). 20. The August 4, 2015 letter estimated that the review necessary ?to copy non-exempt portions? of the footage would cost $36,000.00. That letter stated that ?[p]rocessing? would not begin until the $3 6,000.00 ?copying fee? was remitted. The RAO provided no estimate of how long after receipt of the $36,000.00 it would provide the footage. Exhibit (?The time required to process the video recordings will depend on the volume of other FOIL requests being processed and the availability of trained personnel to process requests?). NYl?s Administrative Appeal 21. By letter dated September 1, 2015, appealed the adverse determination to Mr. Jonathan David, the Records Access Appeals Officer. true and correct copy of ?s appeal letter is annexed to this Petition as Exhibit D. 22. In that letter, observed that the had failed to provide any factual detail supporting the application of any of the exemptions claimed by the NYPD. Accordingly, argued, the NYPD had failed to meet its burden to demonstrate that any portion of the footage requested by Ms. Gross quali?es for exemption. 23. further argued that the $36,000.00 ?copying fee? demanded by the NYPD is excessive and improper, and effectively bars public access to information that FOIL is intended to guarantee. Exhibit D. The Denial of NYl?s Appeal 24. By letter dated September 16, 2015, the NYPD, through Records Access Appeals Of?cer Jonathan David, af?rmed its August 4, 2015 denial of ?5 request for unedited BWC footage. The NYPD also af?rmed the August 4, 2015 decision to condition ?3 access to edited BWC footage upon payment of 3 $36,000.00 fee. A true and correct copy of this letter (the ?Appeals Determination?) is annexed to this Petition as Exhibit E. 25. In the Appeals Determination, the NYPD acknowledged that ?[t]he August 4, 2015, determination [had] provided a limited generic factual description of the types of BWC Footage for which FOIL exemptions were claimed, and generically described the kinds of harm? that could ?ow from the disclosure requested by 26. The Appeals Determination provided a somewhat lengthier?mbut no less genericmdescription of hypothetical scenarios under which a FOIL exemption might conceivably apply. For example, it stated, in conclusory fashion, that example of footage that is exempt from disclosure pursuant to POL 87(2)(a) is the depiction cf the arrest of an individual that was ultimately terminated in favor of the arrested person.? Exhibit at 3. However, the Appeals Determination did not state that the requested BWC footage in fact depicts the arrest of any individual that ultimately terminated in that individual?s favor. Similarly, the Appeals Determination did not state with any particularity that the requested BWC footage in fact contains any material subject to any other FOIL exemption. 27. The Appeals Determination stated that the extent that appeal may be deemed a request that the NYPD assume the entire cost of preparing a copy of the requested BWC Footage, it is ?irther denied because this would constitute an excessive and unreasonable burden not required by Exhibit at 4. The Appeals Determination provided no legal citation for the proposition that a FOIL-mandated disclosure of agency records may be conditioned upon payment of a fee where the agency, in its sole discretion, deems the disclosure too burdensome. The NYPD Has Violated the Freedom of Information Law 28. This Article 78 proceeding is expressly authorized by Section 89(4)(b) of the Freedom of Information Law, N.Y. Pub. Off. Law FOIL was enacted to accommodate, to the fullest extent possible, public access to records and information in the possession of governmental agencies. NY. Pub. Off. Law 84 (?The people?s right to know the process of governmental decision?making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or con?dentiality?). exemptions from disclosure are therefore to be construed narrowly, and the disclosure duties imposed upon state agencies construed liberally, to allow the public maximum access to government records. - Capital Newspapers Div. of Hearst Corp. v. Burns, 67 562, 568 (1986). 29. The NYPD has violated Section 87(2) of FOIL by conditioning the disclosure of non-exempt BWC footage on remittance of a $36,000.00 ?copying fee? intended to compensate the NYPD for employee time purportedly necessary to review and redact the requested footage. FOIL permits an agency to pass on only ?the actual cost of reproducing any 39 (C other record,? which does not include ?search time, administrative costs,? or other preparation fees not related to the actual physical reproduction of a requested record. N.Y. Pub. Off. Law see also Committee on Open Government Advisory Opinion, FOIL-AO- 18127 (May 27, 2010) [an agency] redacts information electronically, in my View, it would not be able to charge for employee time spent 30. Moreover, by asserting that broad categories of exemption apply to the requested records, without describing any specific example of exempt footage actually contained within the requested records, the NYPD has violated section 89(4)(a) of FOIL, which requires that an agency?s determination on appeal?fully explain . . . the reasons for further denial? of a FOIL request. FOIL does not permit an agency to enumerate a list of FOIL exemptions and offer hypothetical circumstances under which records might fall under each exemption. N.Y. Pub. Off. Law 89(4)(a) (emphasis added). Reguested Relief WHEREFORE, Petitioner seeks judgment: (1) Pursuant to CPLR 7806, directing the NYPD and Commissioner Bratton to comply with their duty under FOIL to disclose all portion-s of the requested records that are not subject to any exemption. and to speci?cally identify any material purportedly exempt from disclosure, without conditioning disclosure upon the payment of a fee not arising from the 06st of actual reproduction of records; (2) Awarding reasonable attorneys? fees and litigation costs incurred in prosecuting this special proceeding, as provided by NY. Pub. .Off. Law because the NYPD lacks any reasonable basis in law either. for demanding a $3 6,000.00 fee for the disclosure of these records or for failing to offer a' full explanation for the asserted application of numerous FOIL exemptions; and (3) Granting such and other further relief as the Court deems just and proper. Dated: January 13, 2016 By: Shapird Jonah M. Knobler Amy N. Vegari PATTERSON BELKNAP WEBB TYLER LLP 1133 Avenue of the Americas New York, New York 10036?6710 (212) 336-2000 Attorneys for Petitioner STATE OF NEW YORK ss.: COUNTY OF New York - Courtney Gross, being duly sworn, hereby states that she is a reporter employed by Time Warner Cable News NY1, Petitioner in the above-captioned matter; that she has read the foregoing petition; and that it is true to her own knowledge, except as to matters therein stated on information and belief and as to those matters she believes to be true. 'The sources of the information and the bases for her beliefs are the exhibits attached hereto. Courtney Gross sworn to before me this day of January, 2016 02W Nola? Publiq . -- York Public, Stateo ew I New 52:; ?Ur?nososoeto Gite You: COWW COmmlelUll Expires December a. 20 10 Exhibit A I Records Access Officer NYC Police Department Unit Legal Bureau One Police Plaza Room llO?C New York, New York 10038 April 10, 2015 To whom it may concern: lam submitting'the following Freedom of information Law request on behalf of NY1 News: We request the unedited video files from the body camera program for the foilowing weeks: 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. We request these files be deiivered electronically. We appreciate a response to this request within five business days. Sincerely, Courtney Gross Reporter News 75 Ninth Ave New York, NY 10011 Courtney.Gross@ny1news.com 646.626.0612 Exhibit POLICE DEPARTMENT LEGAL BUREAU F.O.I.L Unit, Room 110C One Police Plaza New York,_NY 10038 04/27/15 Courtney Gross News FOIL Req 75 Ninth Ave Your File New York, NY 10011 Dear Sir or Madam: This is in response to your letter dated 04/ 10/ 15, which was received by this of?ce on 04/20/15, in which you requested access to certain records under the New York State Freedom of Information Law (FOIL). Your request. has been assigned to Police Of?cer Ha1k(646~610~6430) of this office. Before a determination can be rendered, further review is necessary to assess the potential applicability of exemptions set forth in FOIL, and whether the records can be located. I estimate that this review will be completed, and a determination issued, within ninety business days of this letter. This is not a denial of the records you requested. Should your request be denied in whole or in part, you will then be advised in writing of the reason for any denial, and the name and address of the Records Access Appeals Of?cer. Records Access Of?cer COURTESY - PROFESSIONALISM - RESPECT Exhibit POLICE DEFARTMENT LEGAL BUREAU FOIL UNIT, ROOM 1 100 ONE POLICE PLAZA NEW YORK, NY. 30038 Cry 1 ,0 MW or Gross, NY One News 7.55 Ninth Avenue New York, NY 10011 RE: FREEDOM OF INFORMATION LAW REQUEST 15-PL-103860 lit-ear Ms. Gross: This letter is in further response to your letter dated April '10, 2015, wherein you. requested, pursuant to the Freedom of Information Law (FOIL), N. Y. Public Of?cers Law 84 et seg., cepies of unedited video footage recorded by body worn cameras. As a preliminary matter, it is not possible to provide you with unedited video ?les because the recorded videos, which depict interactions between police of?cers, supervisors, and individuals who seek assistance from the police or who are the subject of a police investigation or inquiry, and thus contain information that if disclosed, would constitute an unwarranted invasion of the privacy of numerous individuals; (ii) is con?dential and relates to a criminal investigation; could endanger the life or safety of a person or persons; (iv) constitutes non? disclosable intra? or inter~agency communications; if disclosed, can impair the security of the NYPD's information technology systems; or (vi) is otherwise exempt from disclosure pursuant to statutory law. Accordingly, access to the requested recordings in their unedited form must be denied pursuant to POL and pursuant to POL 89(2). Should you Wish to obtain copies of non~exempt footage contained in recordings made during the time periods listed in the FOIL request, the recordings would have to be reviewed in real time by trained personnel in order to locate and copy non?exempt footage. I estimate the cost to copy non-exempt portions from the five weeks of video footage at approximately 36,000.00. The time required to process the video recordings will depend on the volume of other FOIL requests being processed and the availability of trained personnel to process requests. Processing will commence upon receipt of your remittance for the copying fee. You may appeal this decision or any portion thereof. Appeals must be made in writing, within 30 days of the date of this letter, and must be forwarded to: Jonathan David, Records Access Appeals Of?cer, New York City Police Department, One Police Plaza, Room 1406, New York, NY 10038. Lieutenant Records Access Of?cer COURTESY PROFESSIONALISM RESPECT Exhibit .lonathah David Records Access Appeals Of?cer NVP F.O.I.L. "Unit Legal Bureau One Police Plaza Room 1406 New York, New York 10038 September 1, 2015 'Dear David: On August 4, 2015, the New Y'b?irlk Police Department issued'a wholesale denial of our New York Freedom-ofInformation Law (?liOllJ?) request, which we appeal now. See (13860 dated August it, 2015. 'In our initial. FOIL request we sought unedited video tiles fronrtl'te NYPD Body?Worn Camera program for the following weeks: Dec-ember 5 through 12, 2014,.January 16 through 23, 2615, February 20, through 27', . - through 20.2015 and April 3 through 10; 201-5.. We appeal on the grounds that the legislative - I - intent and the purpose of the BWC program require public access to the requested records, the NYPD failed to satisfy their burden of proof, and the proposed fee for edited video is an unreasonable bar to" public access. .- - -. .V . and the BWC Program Requir?" Broad Public Access to BWC Footage- - i In its statement of legislative intent, FOIL places the burden squarely on the'state to .do ei/erything in its power to increase the pu-bli?c?s _-faith in its government through transparency. ?[llt is incumbent upon the stateand its localities to extend public accountability wherever and. whenever feasible.;. . . Access, to- [gbvernment information] should-not be thwart'ed'by shrouding it with the cloak of secrecy or con?dentiality.? Public Of?cers .Isaw 84. indeed, the New York Court of Appeals has. that impoises abroad duty of A government to make its records available to the'public.? Gould v. New?l?ork'Ciry Police Department, 89 567, 274 (NY. 1996). . As part of a settlement agreement in loyal v. The City ofNew York, the City agreed to a courtwinstalled monitor who was?. required to, among other things, oversee a pilot program for NYPD of?cers. One of the core goals of the BWC pilot program is that the program should ?fosterH positive relations with the community.? December 2, 2014 Operations Order Pilot Brogramdlse ot?BodyJK/om Cameras (?Operations Order?) 11 1. in the wake ofnumerousviolent confrontations between police officers and civilians caught on camera across the country, it has never been more important to achieve the goal of positive and trusting relations between the NYPD and the citizens ot?New York. This goal. and ARR- CELE the goal of government transparency proffered by FOIL, will not be possible if the NYPD keeps the BWC footage under a ?cloak of secrecy or con?dentiality? through the overly-broad application of the POL 87?exemptions. I The NYPD D?id blot Prove that the Requested Footage Is Exempt under 87 The relied onsix exemptions to the presumption that government records should be made. publicly available to deny request for unedited BWC footage. The NYPD failed to meet its burden because it offered only a general explanation devoid of a. minimal level of faCtual detail as to why all of the BWC footage is exempt. New York law states, ensure maximum access to government documents, the ?exemptions are to be narrowly Construed, with the burdenresting on the agency to demonstratethat the requested material indeed quali?es for exemption? (Matter inlrfanig Stale of?iVew York Dept. ofMotor Vehicles, 79 Y2d 106, 109; i Public Officers Lari/15989 . the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld? (Matter of, Fink Le?cowirz, 47? 567. 571).? at 275. - To rightfully deny public accessto the; requested records, the NYPD must artiCulate a ?particularized and speci?c justi?Cati'on for withholding the record.? Gould, 89 at 275, (internalqluotations and citations'ornitted). In" Church ?of Scientology vi New York, j'the Court of Appealsheld that New, York had not satis?ed-its burden of proving- the. requested records-were exempt where ?State "of?cials . . tendei?ed only references to sections, subdivisions and 1 . t2. . . subparagraphs oi: the applicable statute-rand conclusrijry characterizations otthe records sought to be Withheld.? .46 906,907-08 (NY. 1979);, Under those circumstances, the agency provided 'nof?t?actual basis to determine whether tlziexmaterials sought crime within the 87(2) conceptions]? and the State?s denial ot~ access'failed. Id. bare explanation that the vid?bs.?depict interactionsbetween police of?cers, Supervisors, and individuals'who seek aSsiStarice from the police 0r who are theisubject of a policy investigation." and thus are?att exempti'iihd?fihix Separate 1' does not '5 constitute a ?particularized and speci?c usti?cation? as-requi'red by New York law. Here, as in (Jinnah of?Selearning?. the NYPD has provided only broad generalizations and ?conclusory characterizations" of the requested records. The provided no partiqularized or specific facts to justify their positionithat"all unedited Footage should be..Wi-thheldl Rather, they rely on just the sort ofstatements-il?acking evidentiary support that the Court-of Appeals deemed ~insut??cient.- Some glaring examples include that the NYP-D'failed to identify the actual statute The that disclosure would constitute an unwarranted invasion of privacy of the subject individuals, POL reveal con?dential information surrounding a criminal investigation, POL endanger the lives ofindividuals, POL contain exempt inter?agency or infra?agency materials, POL could impair the security at the NYPD information technology systems ifmade available to the public, POL and the requested records are speci?cally exempted From disciosure by New York and/oriederal law, POL 87l'3lla). at.? ., I mm: WARNER EABLE that they claim exempts the requested under POL the types ofexempt inter-- 0r intra- agency communications featured inthe footage under POL and the risks to persons? safety'or NYPD information systems under POL (1). Additionally, states that the footage, compiled for law enforcement purposes, would reveal con?dential information surrounding a criminal investigation. POL The wholesale application of this exceptionis misplaced because the OperationsOrder requests - - activation of the BWCsin circumstances other than criminal investigations. Such circumstances include interaction, regardless thatescalatesandLbecomes adversarial,? Operations Order 1160?), ?[a]ll interior vertical patrols ot?non?Housing Authority buildings and Housing Authority buildings,? id. 1[ situation at the officers discretion where ?it would be bene?cial to record," id. 1i strains reason to suggest that video taken in accordance with the above provisions of the Operations Order always constitutes con?dential information related to a criminal investigation. Based on'lthe many shortcomings of the denial of I our petition, we again request access tor-the BWC footage. The Proposed Cost or Edited diam? to their Rightful Publicinissemtnaaon. - we also take issue with the NY?b?s'propoSed imposition of an execssive $36,000 fee on - those seeking accessto'this importantjinforniiatiOn. We believe this fee to publiqaccess to information tindercut's the very pgir?gposeand scope?of FOIL: to fostei. transparency/?nd trust betWeen government and-the citizenry. Additionally, the NYPD cannot-and will not build trust within its community by eliminating any reasonable opportunity to view the BWC footage. FOIL prohibits public agencies from includingin the cost to petitioners any time: it may take the agency to review or to search ?fer the record. 'An agency may only charge to- prepare or cOpy the record (POL ?8 Edits to existing'video footage is not ?preparing.? records I I't?or copying. are as aresult dfa review of existing records, whether those a record's exist on paper or electronically/?ght: already have Ebeen fee p?rtriitted by "Committedon-Gpen Gotternment, Mayi??'i?, 20:10 Advisory/Opinion at . 1 0.1311?. Accofdingly,we believe $36,000 is not justi?ed" to copyt?rve weeks ofvideo onto i - i i New York is not alone tape-ling?iwith this issue. All across the departments have been confronted-with mounting-request for footage obtained See Reporter?s Committee for Freedom? of the Press, Access, to Police Bodv~Worn Camera Footage a lama/fatmu.ratio.org/bodycams (detailing-state legisl-ation'aad police department policies for public access to BWC footage); Signi?cantl y, police departments are not all wholly rejecting these requests. Ianeattle, WA,WOrkingrwith the police department, a computer-programmer created a YouTube channel to host BWC footage that, as a result ofcustom software, quickly' hints? facial features and removes-audio to avoid privacy concerns. See Jessica Glenza, Seattle Police Post Blurry Body~Camera Videos in Transparency Bid, The Guardian, March 201 at The the oppo?unity to be at the forefront Hrs?: We appreciate a response to this appeal as soon as possible. Sincerely, .. Courtney Gross Reporter News 75 Ninth Ave New York, NY 1001 n??wseom .73 646.625.0612 Robert Hardt, Dan Jacobson I l. .1 t. POLICE DEPARTMENT Of?ce of Deputy Commissioner, {He agff Legal Matters 0 1? One Police Plaza, Room I406A C-New New York, New York 10038 September 16, 2015 Ms. Courtney Gross, Reporter NY One News 75 Ninth Avenue New York. NY VIA MAIL AND FACSIMILE TO (232) 379-3575 RE: FREEDOM OF INFORMATION REQUEST Dear Ms. Gross: This letter is in response to your letter dated September I, 2015, which appealed the determination of the Records Access Of?cer dated August 4, 20l5, which granted access, in redacted form, to the records you requested by letter dated April 10, 2015 ("the FOIL Request?). The FOIL Request sought an unedited copy of all video footage recorded by NYPD body worn cameras Footage") during ?ve separate week-long periods, pursuant to the Freedom of Information Law, NY. Public Of?cers Law 84 et seq. The September 1, 2015, appeal letter purports to challenge a claimed "wholesale denial" by the RAO of the FOIL Request. However, the RAO's August 4, 2015., detennination, rather than denying the request, granted access to the BWC Footage you requested, subject to the necessary redaction of exempt information contained therein, upon payment of the estimated cost of preparing a redacted copy of the video footage that you requested. As fully explained below, the claimed exemptions that warrant the limited denial of access to information that is exempt pursuant to FOIL carefully balanced the right of access to the records with the interests that exemptions seek to protect, and, accordingly, the RAO's partial denial of access is ailinrted. In addition, the request. for payment of the estimated copying fee, the amount of which is commemorate with the breadth of the FOIL request, is entirely correlatth with the provisions of and is af?rmed for reaaons that are fully explained below. The September l, 20! 5, letter also based the administrative appeal on the ground that the RAO's August 4, 2015, determination failed to satisfy a purported "burden of proof" that the RAG was allegedly required to meet with a "particularized showing" of the applicability of the exemption when denying a request for records. However, pursuant to POL in responding to a FOll. rcqocstt the RAE) is imly required to "grant or deny" the request in writing, whereas POL it which permits any person whoae request tor records was denied by the agency?s RAD to ?le a written administrative appeal, requires the agency, in response to an administrative appeal, to ?tally explain in; writing to the person requesting the record the reaarais for further denial? if the administrative appeal is denied. The RAO's letter dated August 4, 2015, and the instant determination comply with these statutory requirements. In alleging that the NYPD failed to meet its burden of proving that the FOIL exemptions cited in the RAO's August 4, 2015. letter applied to the denied portions of the BWC Footage, the September I, 2015, letter cited to opinions of the Court of Appeals in cases that ruled on a different issue: whether the agency had met its burden of prooi?in litigation brought pursuant to POL The cited cases are not relevant to the burden that POL 89(3)(a) places upon the RAO, who is only required to "grant or deny" the request in writing. The Court of Appeals has clari?ed that the burden of making a-paiticulatized showing that an exemption applies as described in the cases cited in the appeal letter only applied to the agency's burden of proof in litigation, after an agency?s ?nal denial of access under FOIL was challenged in an Article 78 proceeding. The September I, 2015, letter also contends that FOIL and the BWC program itself require "Broad" public access to BWC Footage, and complains that the NYPD has wrongly placed a ?cloak of secrecy or con?dentiality' over the requested BWC footage. l-iowev?er, FOIL does not permit an agency to engage in the blanket, indiscriminate disclosure of its records. Rather, an agency is required to determine, in the ?rst instance, what may be disclosed and what must be withheld in accordance with the balance de?ned by FOIL. It is FOIL that de?nes the policy of the State of New York with respect to the disclosure of agency records, and therefore it is pursuant to FOIL that requests for access to records are determined. Neither the BWC program not the stipulation that is referenced in the September I, 2015, letter provides any other mechanism for obtaining the records that were requested in the April 10, 20I5, FOIL request. Accordingly, to the extent that the appeat claims an independent basis (besides FOIL) for obtaining the requested records, it is denied. Moreover, there is no merit to the allegation that the NYPD has applied FOIL's exemptions in an over-broad?manner so as to blanket the records with a cloak of confidentiality, inasmuch as the RAO granted access to the records you requested. subject to redaction of exempt portions, and subject to the payment of an estimated copying the and fee to prepare the record that is commensurate with the broad scope of the FOIL request. THE CLAIMED EXEMPTIONS APPLY TO THE REQUESTED RECORDS The August 4, 2015, detennination provided a limited generic factual description of the types of BWC Footage for which FOIL exemptions were claimed, and generically described the kinds of? harm that would or could occur if BWC Footage were to be disclosed in the ?unedited? form sought in the FOIL Request. As stated by the RAO, the footage depicts, miter cilia, interactions between police of?cers, supervisors, and individuals who seek assistance ti?om the police or who are the subject of a police investigation or inquiry. The claimed exemptions are applicable to footage that depicts such interactions because the harms defined by the FOIL exemptions would or could occur if such materials were to be the subject of indiscriminate disclosure. as described in typical examples below. H?oweveix the August 4. 20l5, letter did not assert. that all the interactitms between police officers and others are exempt pursuant to the cited exemptions. Only those interacticms whose disclosure would result in the listed harms are subject to a FOIL exemption. However, it is important to note that. with respect to any particular recorded segment, more than one exemption may apply to shield a portion of BWC Footage from disclosure. As noted, it is not possible to list. in this letter. every instance of each exempt moment in time captured by the requested footage; the following examples of exempt footage fully explain the need to affirm the RAO's determination that disclosure of the footage sought in the request can only be made in redacted form. For example, POL exempts those portions of tbotage that depicts a police of?cer seeking advice from a colleague or a supervisor in connection with a particular incident, as well as the advice provided to the police of?cer. This is because the exemption for intra? agency materials encompasses even brief exchanges of opinions and/or recommendations between co-workers and/or supervisors that precede or that follow - agency activities. Those activities in themselves may be subject to other exemptions. An example of footage that is exempt from disclosure pursuant to POL 87(2)(a) is the depiction of the arrest of an individual that was ultimately terminated in favor of the arrested person. Such a recording is sealed by operation of law. pursuant to NY Criminal Procedure Law 160.50, and the NYPD is prohibited by that statute from disclosing it to any member of the public. Another type of interaction that the NYPD is prohibited from disclosing, pursuant to NY Civil Rights Law is any footage that depicts or tends to identify the victim of a sex offense, as would occur when a person seeks to report such an offense to the police. These are just two examplesof the limitations on the disclosure of a record by a statute other than FOIL, that become incorporated into FOIL's exemptions pursuant to POL There are many situations where interaction between the police and members- of the community are recorded and depict a member or members of the community in surroundings or under circumstances that give rise to an expectation of privacy on the part of the member(s) of the community. If. for example. disclosure of the communication would result in some kind of personal hardship to the community rnember(s), the communication and the footage is exempt pursuant to POL 87(2)(b) and 89(2) as an unwarranted invasion of personal privacy. This exemption is also claimed for?BWC? Footage that may have captured police officers engaged in purely private activities. Similarly, when a community member pmvides a police officer with some con?dential information about a police investigation. the communication is exempt pursuant to POL because it would disclose con?dential infonnation about a criminal investigation, or be exempt pursuant to ti or (ii) where its disclosure would interfere with a prosecution or deprive a person of a fair trial. This may also occur when BWC Footage captures - an incident or a part thereof that becomes the subject. ofa criminal prosecution and the disclosure of the video. which may be slated to become evidence in the criminal prosecution. would necessarily be subject to the control of the criminal court and of the procedural rules that govern disclosure in proceedings therein. Also. the disclosure of B-WC Footage that contains an interaction between a police of?cer and a witness or complainant could. in many cases. endanger the life or safety of such a witness or complainant. The avoidance of such a harm as a result of the indiscriminate disclosure of police records is a paramount interest that seeks to protect. and redaction ofsuch content is '44- required pursuant to POL Contrary to the contention inade in the appeal letter, the language contained in the referenced NYPD Operations Order does not foreclose such situations from being included in BWC Footage. In addition, some BWC Footage may depict with clarity some of the information technology assets deployed by the NYPD in patrol vehicles and in the hands of police of?cers. Wises; .. .. . jeopardize the security of the information technology assets and are therefore exempt under?POL In challenging the RAO's limited denial of access, the September I, 2015, letter calls on the NYPD to spell out the precise information that is exempt from disclosure in each portion of the BWC footage that is exempt. To do so would destroy the interests that FOIL permits this agency to protect from disclosure, and is neither required not Indeed, any attempt to do so would be unreasonably burdensome and, as such, is not required by FOIL. We note that the above examples are meant to explain the applicability of the claimed exemptions to the situations depicted in the BWC Footage, but are neither an exhaustive list of the type of footage contents for which exemptions can and will be claimed, not are they intended to limit the NYPD's ability to claim additional exemptions should footage falling within such additional exemptions be identi?ed during the copying process. THE REQUEST FOR PAYMENT WAS APPROPRIATE AND REASONABLE The RAO's August 4, 2015, determination to provide access to non-exempt portions of the video footage was accompanied by a request for payment of the estimated cost of preparing a copy of the disclosable portions of the BWC Footage that was requested. The ?ve weeks of BWC Footage that are subject to the FOIL request contain the above described categories of exempt information, but the precise extent of the exempt portions of the video footage cannot be determined prior to embarking on the copying process by quali?ed personnel who can redact exempt materials as part of the copying process. I note that the listed categories of exempt infonnation are not exhaustive of all exempt information contained in the ?ve weeks of BWC Footage that are subject to the FOIL Request, as it is anticipated that other exempt materials may be contained in the recordings. Accordingly, the ability to claim the appropriate exemption is appropriately reserved for the time that copying is undertaken pursuant to your approval of the preparation costs. Moreover, the FOIL exemptions claimed by the RAC) and sustained herein are not claimed "wholesale" to deny the request, but are valid exemptions that must be evaluated on a second by second basis within the recordings at the time that the BWC Footage is copied and redacted; this is a labor-intensive process whose importance cannot be gainsaid. To the extent that the administrative appeal may be deemed a request that the NYPD assume the entire cost of preparing a copy of the requested BWC Footage, it is further denied because this would constitute an excessive and unreasonable burden not required by FOIL. The RAO's estimate of the cost of processing a copy of the BWC Footage was reasonable based on an estimate that the total time of footage recorded during the ?ve weeks speci?ed in the FOIL request was approximately 190 hours, and that in addition to the 190 hours required to View the recordings in real time, an additional 60% (or 114 hours) will be required to copy the Footage in a manner that will redact the exempt portions of the BWC Footage, for a total of approximately 304 hours. The lowest paid NYPD employee "with the skills required to prepare a redacted copy of the recordings is in the rank of police of?cer, and the cost of compensating a police of?cer per hour. Multiplying $120.00 by 304 hours equals $36,480, which closely approximates the amount estimated by the RAO. This approximate cost does not include the time required to locate and collate the recordings, for which no charge is made, as that time is a part of the search for responsive records, and not a part of the time required for copying.1 In sum, the copying cost, as estimated by the RAO, is reasonable and commensurate with the breadth ot?the FOIL Request. Should you wish to limit the scope of the FOIL Request, the RAO Will provide a revised estimate of the cost of copying the materials speci?ed in a more limited version of the FOIL Request. Other exemptions under FOIL may also apply. You may seek judicial review of this determination by commencing an Article 78 proceeding within four months of the date of this decision. Sincerely, i 7/ onathan avid Records Access Appeals Of?cer at c: Committee on Open Oovcmnient l-llease note that these ?gures are estimates that may have to be revised. consistent with the actual amount oi? time expended during the copying process. Index No. SUPREME COURT OF NEW YORK COUNTY OF NEW YORK TIME WARNER CABLE NEWS Petitioner, ?against? NEW YORK CITY POLICE DEPARTMENT and WILLIAM J. BRATTON, in his official capacity as Commissioner of the New York City Police Department, Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Defendant. VERIFIED PETITION Patterson Belknap Webb Tyler LLP Attorneys for Petitioner NY1 1133 Avenue of the Americas New York, New York 10036-6710 Telephone: (212) 336-2000