Surveillance Tech. Oversight Project, Inc. v. New York City Police Dept.

2024 NY Slip Op 32162(U)
CourtNew York Supreme Court, New York County
DecidedJune 26, 2024
StatusUnpublished

This text of 2024 NY Slip Op 32162(U) (Surveillance Tech. Oversight Project, Inc. v. New York City Police Dept.) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Surveillance Tech. Oversight Project, Inc. v. New York City Police Dept., 2024 NY Slip Op 32162(U) (N.Y. Super. Ct. 2024).

Opinion

Surveillance Tech. Oversight Project, Inc. v New York City Police Dept. 2024 NY Slip Op 32162(U) June 26, 2024 Supreme Court, New York County Docket Number: Index No. 158227/2020 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 158227/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 06/26/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 158227/2020 SURVEILLANCE TECHNOLOGY OVERSIGHT PROJECT, INC., MOTION DATE N/A1

Petitioner, MOTION SEQ. NO. 001

FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES,

DECISION + ORDER ON -v- MOTION NEW YORK CITY POLICE DEPARTMENT, JORDAN S. MAZUR IN HIS OFFICIAL CAPACITY AS RECORDS ACCESS APPEALS OFFICER

Respondent. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 1-, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 were read on this motion to/for ARTICLE 78 .

Respondents’ cross-motion to dismiss the petition, which seeks to compel respondents to

produce certain records pursuant to a Freedom of Information Law (“FOIL”) request is denied

and respondents must answer on or before July 18, 2024.

1 The Court must address the elephant in the room: this proceeding has been pending for far too long. The docket suggests the initial return date was in January 2021 and that some sort of conference may have been held in November 2021 although, obviously, no decision was ever issued. Although this case was only recently transferred to this part, the Court apologizes, on behalf of the court system, for the inexcusable and lengthy delay in the issuance of a decision on this motion. 158227/2020 SURVEILLANCE TECHNOLOGY vs. NEW YORK CITY POLICE Page 1 of 6 Motion No. 001

1 of 6 [* 1] INDEX NO. 158227/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 06/26/2024

Background

In this FOIL proceeding, petitioner seeks records concerning a “Sentiment Meter.” It

argues that this tool measures public attitudes towards the NYPD and provides information at the

precinct and neighborhood level. Petitioner contends that respondents have spent at least $3

million on this project but have refused to turn over much information about it. Petitioner alleges

that respondents contracted with a private company (“Elucd”) to develop the Sentiment Meter.

Petitioner maintains that Elucd has acknowledged working with the NYPD and that Elucd has

collected data from more than 250,000 New Yorkers.

Petitioner contends that the NYPD has cited an overall trust rating related to the

Sentiment Meter but has not yet turned over information at the neighborhood or precinct level.

On November 26, 2019, petitioner sent a FOIL request to the NYPD that requested:

“1. Any and all contracts, memos, audits, reports, and communications (including emails) from 1/9/16 through 11/26/19 between the New York City Police Department and Elucd, Inc. 2. Any and all instructions, guides, guidelines, directions, rules, information, manuals, operations orders, memoranda, etc. from 1/9/16 through 11/26/19 in regards to the use of any product provided by Elucd, Inc.” (NYSCEF Doc. No. 5).

In response, respondents denied the request and explained that “To the extent that the

requested documents may exist, I must deny access because the production of the records would

require extraordinary efforts not required under FOIL” (NYSCEF Doc. No. 8).

Petitioner then filed an administrative appeal, which largely focused on the fact that

respondents’ denial did not explain the reasoning behind the determination (NYSCEF Doc. No.

10).

Respondents issued a more detailed denial in response to this appeal the very next day

(NYSCEF Doc. No. 11). They observed that they could not locate any contracts for the specific

time period requested (id. at 1). With respect to the request for communications, respondents

158227/2020 SURVEILLANCE TECHNOLOGY vs. NEW YORK CITY POLICE Page 2 of 6 Motion No. 001

2 of 6 [* 2] INDEX NO. 158227/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 06/26/2024

claims that they found the “presence of 122,540 emails between the two parties for the time

period requested and 159,104 communications about the use of any Elucd product” and so

production of these records “would require extraordinary efforts that are not required under

FOIL” (id. at 1-2).

Respondents also contend that disclosure of the records would constitute an unwarranted

invasion of personal privacy and that some records would be subject to the inter-agency or intra-

agency exemption to disclosure under FOIL. They also noted that they could not find any

“instructions, guides, guidelines, directions, rules, information, manuals, operations orders,

memoranda etc. related to Elucd, Inc.” except for the communications cited earlier in the

determination (id. at 3).

Petitioner complains that respondents have identified over 100,000 responsive records

and simply refuse to review them. It argues that an agency cannot refuse to disclose records on

the ground that some of them might be exempt from disclosure. Petitioner argues that

respondents have not met their prima facie burden to show that disclosure of these records would

be unduly burdensome.

Petitioner also points out that respondents did not address petitioner’s request for memos,

audits and reports between the NYPD and Elucd.

Respondents cross-move to dismiss on the ground that they need not engage in an unduly

burdensome review process. They observe that they would have to retrieve hundreds of

thousands of documents and that they could not hire a third-party vendor due to the sensitive

nature of the documents. Respondents emphasize that they conducted a diligent search despite

the fact that they issued the decision on the appeal a single day after petitioner filed its appeal.

158227/2020 SURVEILLANCE TECHNOLOGY vs. NEW YORK CITY POLICE Page 3 of 6 Motion No. 001

3 of 6 [* 3] INDEX NO. 158227/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 06/26/2024

In reply, petitioner questions why respondents could not use common e-discovery tools to

simplify the review process and complete it efficiently. It stresses that FOIL requires

respondents to engage in reasonable efforts to produce documents.

Discussion

“All government records are thus presumptively open for public inspection and copying

unless they fall within one of the enumerated exemptions . . . [B]lanket exemptions for particular

types of documents are inimical to FOIL’s policy of open government. Instead, to invoke one of

the exemptions of section 87(2), the agency must articulate [a] particularized and specific

justification for not disclosing requested documents” (Matter of Gould v New York City Police

Dept., 89 NY2d 267, 274-75, 653 NYS2d 54 [1996] [internal quotations and citations omitted]).

The Court denies the cross-motion to dismiss. Respondents’ contentions that the requests

are unduly burdensome are not sufficient, at least at the motion to dismiss stage, to compel the

Court to dismiss this entire proceeding. The Court requires more details about respondents’

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gould v. New York City Police Department
675 N.E.2d 808 (New York Court of Appeals, 1996)
Newell v. Javier
197 N.Y.S.3d 503 (Appellate Division of the Supreme Court of New York, 2023)

Cite This Page — Counsel Stack

Bluebook (online)
2024 NY Slip Op 32162(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/surveillance-tech-oversight-project-inc-v-new-york-city-police-dept-nysupctnewyork-2024.