THE CITY OF NEW YORK LAW DEPARTMENT ZACHARY W. CARTER Corporation Counsel 100 CHURCH STREET NEW YORK, NY 10007 LESLEY BERSON MBAYE phone: (212) 356-0897 fax: (212) 356-2089 email: lmbaye@law.nyc.gov (not for service) July 10, 2017 By NYSCEF Hon. Manuel J. Mendez Justice of the New York State Supreme Court, County of New York 71 Thomas Street, Rm. 210, IAS Part 13 New York, NY 10013 Re: Logue v. New York City Police Dep’t, et al. Index No. 153965/2016 Dear Justice Mendez: I am the Assistant Corporation Counsel assigned to represent the Respondents New York City Police Department and former Commissioner William Bratton (collectively, “Respondent” or “NYPD”) in the above-referenced Article 78 FOIL proceeding. I write to bring to the Court’s attention a dispute between the parties concerning Respondents’ compliance with Your Honor’s Order of February 6, 2017 (dkt. no. 61) that Respondents believe can be resolved in a conference with Your Honor, and without the need for motion practice. However, due to the exceptional circumstances and sensitive nature of the NYPD’s position on this issue, and the risk that public discussion could lead to the identification of undercover officers and also jeopardize the safety of others, Respondents respectfully request that they be permitted to explain their position to the Court in an ex parte, in camera conference. Procedural Background Petitioner brought this Article 78 special proceeding to challenge the NYPD’s response to their Freedom of Information Law (“FOIL”) request for records concerning the NYPD’s surveillance of protests at Grand Central Station from November 2014 until January 2015. As set forth in Respondents’ Verified Answer and supporting memorandum of law, NYPD searched for and did not locate any records responsive to five of the seven enumerated FOIL requests. NYPD did locate records responsive to the other two requests, but withheld them as exempt under various FOIL exemptions. The Court’s decision, dated February 6, 2017 (the “Order”) granted the Petition in part and denied it in part. A copy of the Order is annexed as Exhibit “A.” As relevant to the parties’ current dispute, the Court ordered NYPD to produce to Petitioner, within thirty days, records responsive to Petitioner’s FOIL Requests Nos. 1 and 4, which are: Request No. 1: All pictures, videos, audio recordings, data, and metadata related to Grand Central Station protests that were collected or received by your agency. Request No. 4: Copies of all communications sent or received by your agency between November 2013 and January 2015 pertaining to protests in Grand Central Station. Specifically, the Court ordered Respondents to produce “multimedia records” responsive to Request No. 1, and previously withheld documents responsive to Request No. 4 “redacted to omit identifying information including the names and e-mail addresses of the NYPD undercover officers, their handlers and the base.” In accordance with this Order, under cover letter dated March 13, 2017, Respondents produced to Petitioner’s counsel: (1) a CD with video recording in response to FOIL Request No. 1, and (2) 45 pages of records, comprising copies of communications between undercover officers, their handlers, and their base, redacted in accordance with the Order, in response to FOIL Request No. 4. A copy of the cover letter that was sent with these documents is annexed as Exhibit “B.” Petitioner’s Response to NYPD’s Production By letter to the undersigned dated March 17, 2017, Petitioner’s counsel raised several objections to Respondents’ production, claiming that the production “violate[d]” Your Honor’s Order. Specifically, Petitioner (1) objected to the redactions of date, time, filename, and other data in the records responsive to Request No. 4; (2) claimed the communications production was under-inclusive; and (3) objected to the lack of production of any still or video surveillance camera footage. Petitioner also alleged that the NYPD affiant, Assistant Chief Donohue, committed perjury, and threatened to seek sanctions. Petitioner’s letter is annexed as Exhibit “C.” NYPD Responds to Petitioner’s Objections By letter dated March 27, 2017, the undersigned responded to Petitioner’s objections. NYPD stood by its redactions, noting that its search terms for communications were over-inclusive rather than under-inclusive, and refuting Petitioner’s assertion that the absence of any video or still photo surveillance records was evidence that Assistant Chief Donohue had perjured himself. A copy of that letter is annexed as Exhibit “D.” -2- Petitioner Writes Again Three months letter, by letter dated June 15, 2017, Petitioner renewed his objections to Respondents’ production of responsive records. This letter began by informing the undersigned that Petitioner was prepared to move to hold NYPD in contempt, and to seek sanctions against both NYPD and the New York City Law Department because, in Petitioner’s opinion, Respondents’ litigation papers “unequivocally assert that stationary surveillance camera imagery were among the records NYPD withheld from Petitioner.” See Letter of David Thompson, Esq., dated June 15, 2017 (annexed as Exhibit “E”). Petitioner demanded the production of the purportedly existent responsive video and still photographic surveillance records. In the alternative, Petitioner asserted that Respondents’ “apparent present position” that no such records exist contradicted representations made in Respondents’ legal papers such that those statements constitute “lie[s] under oath to the court” (lower case in original), and warrant sanctions. Petitioner also renewed his objections to Respondents’ redactions in the produced communications records. NYPD Responds and Requests an Ex Parte In Camera Conference to Present its Position on these Disputes to the Court In response to Petitioner’s continued objection to the redactions, NYPD reanalyzed the redacted information to determine whether any information could be unredacted without risking the identification of undercover officers. As a result of this analysis, it was determined that one data point could be unredacted without incurring such risk. That data point represents the numerical value assigned to the records (“Record Number”) as they were extracted from the device containing the records for the purpose of the original March 17 document production. Copies of those documents with the Record Number unredacted were provided to Petitioner’s counsel by email on July 10, 2017. A copy of this letter is annexed as Exhibit “F.” In providing these documents, however, NYPD did not unredact the remaining information sought by Petitioner (i.e., date, time, and filename information), because doing so would reveal non-routine investigative techniques, and also could result in the identification of undercover police officers, thereby endangering their lives and safety. Petitioner’s June 15 letter also asked NYPD to “provide us with further information about why this data in particular [i.e. portions of file names, date, and time information] would identify NYPD personnel.” Providing such an explanation, however, would require NYPD to reveal or explain non-routine law enforcement techniques, and also would implicate issues of public safety and security. Similarly, an explanation of NYPD’s position regarding the alleged video and/or still photographic surveillance records also would require NYPD to reveal or explain non-routine law enforcement techniques, and also would implicate issues of safety and security. Respondents understand the issues raised by Petitioner in his letters. Although NYPD is confident it can explain why Petitioner’s objections and concerns regarding NYPD’s production are without merit, the nature of NYPD’s response constrains it from explaining its position except privately to Your Honor. -3- Your Honor’s Part Clerk has indicated that the Court does not generally accept requests for conferences to resolve disputes. However, given the exceptional circumstances and sensitive nature of NYPD’s rationale, which the Department is fully prepared to provide to the Court, NYPD respectfully requests that the Court schedule an ex parte in camera conference so that NYPD may confidentially explain its position to Your Honor concerning these record production disputes. Thank you for your attention to this request. Respectfully, /s/ Lesley Berson Mbaye Assistant Corporation Counsel cc: By NYSCEF David A. Thompson, Esq. Stecklow & Thompson Attorneys for Petitioner 217 Centre Street, 6th Fl. New York, NY 10013 -4-