POLICE DEPARTMENT
Of?ce of Deputy Commissioner,
Legal Matters

One Police Plaza, Room 1406A
New York, New York 10038

 

February 4, 2016

Ms. Mariko Hirose

New York Civil Liberties Union
125 Broad Street, 19th Floor
New York, New York 10004

RE: FREEDOM OF INFORMATION LAW
REQUEST: 

Dear Ms. Hirose:

This letter is in response to your letter dated November 18, 2015, which sought to
administratively appeal portions of the Records Access Of?cer's (RAO) letter dated October 30,
2015, which determined the NYCLU's request for records that pertain to cell site simulators
(CSS or CSSs) made by letter dated April 13, 2015, pursuant to the Freedom of Information
Law, N.Y. Public Of?cers Law (POL) 84 at seq. (FOIL).

Preliminarily, the administrative appeal, as limited by the terms of the November 18,
2015, letter, stated that it is based on the NYPD's failure to meet its burden of articulating
"'particularized and speci?c justi?cation[s] for withholding" records pursuant to FOIL's
exemptions. The appeal on this basis is denied, because the burden on an agency's Records
Access Of?cer is only to grant or deny a FOIL request. gee, POL The Court of
Appeals has explained that the requirement that an agency articulate particularized and speci?c
justi?cations for denying access to records only applies to the agency's burden of proof in
litigation -- not at the administrative level. See, Capital Newspapers v. Burns. 67 562,
566 note (1986). FOIL requires that if an administrative appeal is taken, the appeal
determination "fully explain" the reasons for a further denial of the request in the event that the
appeal is not granted. SE, POL The RAO's letter dated October 30, 2015, and the
instant determination, fully comply with these statutory requirements, and this basis for the
appeal must be denied.

The November 18, 2015, letter asserts that many of the statutory grounds identi?ed by
the RAO as a basis for the partial denial of access are inapplicable, irrelevant, or otherwise
inapposite with respect to the FOIL request. However, 6 USC 482(t)(1), which de?nes
"homeland security information," speci?es that it applies to "any information? possessed by a
local agency that relates to the threat of terrorist activity, or to the ability to prevent, interdict, or
disrupt such activity, or that would improve the response to a terrorist act or assist in the
investigation or identi?cation of a suspected terrorist actor. The use of CSS technology by a local
law enforcement agency within the context of criminal investigations does not remove



information pertaining to use of CSS equipment from the protection of the statute, since the use
of a CSS in a criminal investigation that does not involve terrorism does not diminish the ability
of an agency to use a CSS as part of its response to a past, present, or future terrorist act. The
public disclosure of such information would allow terrorist actors and other potential
investigative subjects to develop and implement countermeasures to these counterterrorism tools
and to the nonroutine criminal investigative techniques that are involved in the utilization of this
technology. This is precisely the type of disclosure that the exempting statutes were enacted to
preclude.

POL 87(2)(a) permits an agency subject to FOIL to deny access to records that are
exempt from disclosure pursuant to a state or federal statute. Therefore, in addition to the
exemptions speci?cally de?ned by the POL, FOIL also incorporates the exemptions from, and
prohibitions on, the disclosure of records and/ or information that are defined by numerous other
statutory provisions.

22 CFR 121.] Category XI includes within the United States Munitions List electronic
systems and equipment that intercept, identify, or locate sources of intentional or unintentional
electromagnetic energy in order to provide threat detection, recognition, targeting, planning, or
conduct of future operations, as well as electronic systems, equipment or software specially
designed for intelligence purposes that collect, survey, monitor, or exploit, or that analyze and
produce information from the electromagnetic spectrum. S_ee, 22 CFR 121.1 Category XI
and 22 CFR 121.1 Category XI As a regulated defense article pursuant to 22 USC
2278, CSS technology and details of its Operational use or inner workings are also subject to
the non-disclosure provisions of the International Traf?c In Arms Regulations (ITAR), 22 CFR
Parts 120-130.

Moreover, because the CSS technology is used in intelligence gathering for homeland
security and national defense purposes, it is subject to the prohibition on the disclosure of
intelligence sources and methods, pursuant to several federal laws incorporated into FOIL
pursuant to POL as well as pursuant to the protective provisions within FOIL for
con?dential and/or non routine investigative techniques and procedures, POL and
Disclosing details of the use of C883 is neither required nor permitted because such
disclosure would diminish the ability of law enforcement entities to conduct investigations.

The invocation of 47 CFR 0.457 is appropriate because telecommunications devices are
subject to the jurisdiction of the Federal Communications Commission (FCC), and the non?
disclosure rules promulgated by the FCC, which preclude the disclosure of records within the
FCC's jurisdiction that are not generally available for public inspection, are incorporated to FOIL
by way of POL These rules apply to ?883 as well as to cellular telephones.

The denial of access pursuant to 18 USC 3123 is appropriate and applicable to shield
details of any application for an order, or of any order issued that pertains to the use of CSSs.
This federal statute prohibits disclosure of information that was sought in the FOIL request, and
constitutes a further basis for denial, in addition to the prohibitions on such disclosure contained
in Article 705 of the NY Criminal Procedure Law. Both federal and New York pen register
statutes provide an exemption from disclosure for the information sought in the FOIL request as

to the speci?c instances and circumstances in which such orders were sought. Moreover, neither
statute pre-empts the other, and each statute provide an independent prohibition on the disclosure
of the information requested.

In addition to the foregoing, additional explanations speci?c to the denial of numbered
categories of information speci?ed in the November 18, 2015, letter are set forth below.

Request The denial of the request for purchase orders, invoices,
contracts, loan agreements, and similar records regarding the acquisition of CSSs was properly
made because the disclosure of the commercial and technical information contained in such
records is exempt pursuant to the statutes cited by the RAO, including those whose applicability
is more fully explained herein. First, the public disclosure of commercial information such as
price, delivery times, and other contract terms that pertain to speci?ed equipment within a
speci?c business relationship would impair the ability of buyers and sellers to ?nalize contract
negotiations and is not required pursuant to POL Second, such commercial and
technical information, which has not previously been disclosed, remains a trade secret that is
proprietary to the manufacturer, and is exempt from disclosure pursuant to POL 
Also, 87(2)(g) exempts predecisional materials that pertain to purchases of equipment and
applies to shield such predecisional information from disclosure.

In addition, technical details that are proprietary to the CSS equipment are also exempt
under POL and in that their disclosure would (1) constitute the disclosure of
con?dential information that is used in criminal investigations and also (2) reveal non routine
criminal investigative techniques, the disclosure of which would permit criminals to evade
detection and apprehension.

As a corollary, the availability of such information to kidnappers, terrorists, or other
actual or potential perpetrators of serious crimes could endanger the life or safety of a victim, of
bystanders, and of numerous others if a perpetrator is able to evade detection as a result of
engaging in countermeasures enabled through knowledge of such technical or proprietary details.
Furthermore, CSS equipment is a type of information technology asset in the hands of law
enforcement, and the disclosure of detailed information pertaining thereto would make it
impossible to guarantee the security of such information technology, and is therefore not
required pursuant to POL 

For the reasons explained earlier in this letter, the information requested in Request ?1 is
also prohibited from disclosure under 6 USC 482(t)(1), under the ITAR, and pursuant to 47
CFR 0.457, which federal provisions are incorporated into FOIL by POL 

Request The RAO's diligent search located the two pages which were
provided in redacted form. The search failed to locate a copy of a non-disclosure agreement
(NDA) between the NYPD and the FBI regarding CSSs. The bases for the redaction of
proprietary information from this document are POL 87(2)(c) and as well as the federal
provisions cited in the previous paragraph, the applicability of which is fully explained
hereinabove. In addition, to the extent that your of?ce has already obtained an unredacted copy

of the NDA applicable to Harris Corporation sales to municipal entities, as evidenced by the
Exhibit annexed to the November 18, 2015, letter, your request is moot.

Request 

The NYPD serves court orders directing the implementation of pen registers and/or trap
and trace devices upon wireless service providers, and communications providers send bills for
implementing such orders. There are no communications between the NYPD and wireless
service providers regarding the use of CSS technology in any particular investigation or about
the use of such technology in general. CSS technology is used in just a small fraction of the
investigations in connection with which a court has ordered the use of a pen register and/or trap
and trace device. The court orders and the service thereof are prohibited from disclosure
pursuant to POL 87(2)(a) and NY Criminal Procedure Law (CPL) 705.30, which provides
that a pen register order must direct that the order be sealed, and that the person or entity that
obtained the order and any entity providing assistance in connection with the implementation of
the order be prohibited from disclosing information about the investigation that resulted in the
issuance of the order. included within the information prohibited ?'om disclosure is the billing
information, which pertains to each implementation of a pen register and/or trap and trace device
order. Similar statutory protection is also afforded by 18 USC 3123. Since each time a
particular order of the court is served on a wireless service provider it includes some identi?able
subscriber information, privacy concerns were properly identi?ed by the RAO as a further basis
for denying access. This is also the case when the service provider sends an invoice. The
signi?cant privacy concerns that apply to each intercept, regardless of the outcome of the
investigation and/or prosecution, are therefore protected from disclosure by POL 87(2)(b) and
The con?dential and nonroutine nature of the investigatory records were also properly
claimed by the RAO as a basis for exemption.

Requests and The RAO's October 30, 2015, letter granted Requests 7 and
8 to the extent of providing information about all NYPD investigations which led to an over?the-
air intercept. The information provided identi?ed the NYPD unit conducting the investigation,
the wireless carrier that serviced the target number, the results of the intercept, and the top charge
for those cases that resulted in an arrest. The RAO explained that as a rule, court orders pursuant
to CPL Article 705 were obtained prior to attempting an over-the-air intercept, and the RAO
provided information about investigations involving exigent circumstances wherein a court order
had not been obtained prior to the initiation of the interception attempt. The RAO's response
provided information in tabular form, providing charts which re?ect the number of investigations
wherein CSSs were utilized, as well as the nature of the authorization obtained prior to the
investigative use of cell site simulators and the number of investigations that resulted in
prosecutions. The materials provided by the RAO listed the cases where due to exigent
circumstances a court order had not been obtained prior to attempting the intercept, and
identi?ed the crime or situation that gave rise to the exigent circumstances in each case. The
RAO provided the top charge for cases where intercepts led to prosecutions. Accordingly, the
RAO's response provided all of the information sought in Request number 7, and all of the
information sought in Request number 8 except for a list of court docket numbers for each of the
intercepts.

The RAO properly denied the request for a list of court docket numbers for cases
stemming from CSS intercepts because the NYPD does not maintain such a list and the further
ground that such a list could not be compiled with reasonable efforts. These grounds also apply
to cases pursuant to which an application for a pen register and/or trap and trace device order
was made. In addition, even if a list containing this information had been in existence, it would
not be subject to disclosure because the court docket numbers sought in Request number 8 would
be suf?cient to identify the defendant, and thereby would violate the provisions of CPL 
705.30, 705.35 and 18 USC 3123, as well as of the court orders issued pursuant to such
statutory authority, which prohibit such disclosure. This information is also exempt from
disclosure pursuant to POL and (ii) in that its disclosure would result in interference
with the conduct of criminal prosecutions and deprive persons of the right to a fair trial and/or
impartial adjudication. Moreover, such information would violate privacy rights protected from
disclosure by POL 87(2)(b) and and is further exempt from disclosure because it
would tend to reveal con?dential information relating to criminal investigations, the disclosure
of which is precluded by POL 

Moreover, the court orders that directed the installation of each pen register and/or trap
and trace device prohibit, by their own terms, the disclosure of this information. This information
is also exempt ?'orn disclosure pursuant to POL 87(2)(a) and CPL 705.35.

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.

incerely,


onathan David 
Records Access Appeals Of?cer

c: Committee on Open Government