Judge Orders NYPD to Turn Over Its Records of 'Black Lives' Monitoring (Free Article)

A State Supreme Court Justice has ruled that the NYPD’s response to “neither confirm nor deny” the existence of surveillance records tied to Black Lives Matter activists’ protests and marches was “impermissible.”

In her opinion, issued Jan. 14, Justice Arlene Bluth said the NYPD’s so-called Glomar response—which allows government agencies to cite national-security concerns as the basis for denial of a public-records request—could not apply in this case.

“To embrace the use of Glomar response here would shut off all public inquiry and require respondent to hold itself accountable,” she wrote in her decision. “That notion runs counter to the very purpose of freedom of information statutes.”

‘Other Responsibilities’

She directed the NYPD to turn over records pertaining to the department’s monitoring of social-media accounts of the protesters and activist groups, including records that identify and describe software or technology the NYPD uses in its monitoring. She also ordered the department to release its policies and guidelines about those monitoring efforts and the results of those efforts with regard to the petitioners’ social-media accounts.

Justice Bluth remanded back to the department the petitioners’ public-records requests relating to the NYPD's use of technology that interferes with cellphone use, the department’s policies that guide that interference, and descriptions of when the NYPD has engaged in the interference.     

She wrote that an affidavit by the NYPD’s Deputy Commissioner of Intelligence and Counterterrorism, John Miller, describing the Glomar response as reasonable given that revealing “critical intelligence” could aid criminals or terrorists, failed to explain how it applied to the protesters’ records request.

Although she acknowledged that the NYPD has information that “is highly sensitive,” Justice Bluth wrote that the department “has responsibilities other than counterterrorism,” including ensuring the safety of protesters and the general public.  

“Those duties should be subject to public oversight through FOIL, subject to applicable exemptions,” she wrote. “But to allow respondent [the NYPD] to provide a Glomar response in this case would effectively eliminate any oversight over respondent’s handling of protesters—activities which are not inherently violent or criminal...Rather, as respondents themselves recognize, these activities are explicitly protected by the U.S. Constitution and U.S. Supreme Court precedent.”  

Grassroots Suit

The New York Civil Liberties Union in 2017 filed a Freedom of Information Law request with the NYPD on behalf of Millions March NYC, a grassroots organization of activists advocating for Black lives, and three of its representatives, Vienna Rye, Arminta Jeffryes and Nabil Hassein, seeking the NYPD records after they determined that police across the nation had interfered with black Lives Matter protests, and following what the New York City activists said were problems with their cellphones, particularly during a large march and protest in December 2014.

Some of the Millions March activists said they had experienced problems when using cellphones to organize and publicize activities since the December 2014 protest. According to the suit, Ms. Rye's cellphone shut down while she was filming the march despite it being fully charged. Other petitioners experienced similar problems during protests in April  2015 and in April 2016 alsoMs. Rye’s cellphone encountered problems when she tried to post to Millions March NYC's social-media account during marches in 2015.  

The FOIL request sought records relating to the NYPD's use of technology to interfere with protesters’ cellphones, those detailing the department’s monitoring of protestors’ social media accounts, and those that pertained to what they said was the NYPD's acquisition of the contents of protesters' cellphones without a court order.  

The NYPD issued its Glomar response and the NYCLU filed suit.  

Following a Court of Appeals decision, the NYPD provided 125 pages of partially redacted records but continued to “neither confirm nor deny” the existence of other records pertaining to department policy and its use of technology. The petitioners sought “all responsive material,” saying it was being withheld in violation of FOIL.  

NYPD Reviewing Decision

The suit documented reports of other activists experiencing similar problems with their phones. The petitioners cite reports of police use of software with names such as Digital Stakeout, Geofeedia and Dataminr that allows analysis of social media data, as well as the use of "stingrays," technology that quickly drains cellphone batteries. Stingrays can also intercept the contents of communications or target service interference.  

Bobby Hodgson, a staff attorney with the New York Civil Liberties Union, said the ruling affirmed the Freedom of Information Law and undermined blanket use of Glomar responses.

“Today the court confirmed that the NYPD cannot vastly expand the scope of the Glomar response to deny the public access to basic information regarding the tactics and technologies used by police to monitor First Amendment-protected political activity,” Mr. Hodgson, who argued the case, said in a statement. “We are pleased that the court agreed that allowing the police to cite very general national security concerns in this case—to avoid transparency and accountability over the surveillance of protesters—would undermine the very purpose of the Freedom of Information Law.”

A spokeswoman for the NYPD said it was reviewing the judge’s decision and would discuss options with the city's Law Department.

“The NYPD uses the Glomar response exceedingly sparingly and only after careful consideration of the interests involved, including transparency, the need to protect the integrity of criminal investigations and public safety,” the spokeswoman, Sgt. Jessica McRorie, said in a statement.

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