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Grabell v. New York City Police Department

In a Freedom of Information Law case regarding the NYPD’s use of military-grade x-ray vans, the Brennan Center supports a lower court’s decision to compel the NYPD to release responsive documents, arguing that transparency about the use of new technologies by law enforcement is critical for accountability and oversight.

Published: November 2, 2015

Grabell v. NYPD involves a Freedom of Information Law case regarding a request for information about the New York City Police Department’s (NYPD) use of Z Backscatter (x-ray) vans. In conjunction with the New York Civil Liberties Union, the Brennan Center filed a motion for leave to file an amicus brief in the case. The brief calls on the Appellate Division, First Department to uphold a lower court’s decision requiring the NYPD to turn over information on its use of the x-ray vans, in response to a FOIL request filed by the investigative journalism group, ProPublica.   

Z Backscatter Vans are military-grade surveillance tools that utilize x-ray radiation to create images of the inside of cars and buildings. In 2012, ProPublica filed a New York State Freedom of Information Law (“FOIL”) request for records about the NYPD’s use of the vans, including if or when a warrant is required, how long data is retained, and any known public health risks. The NYPD denied the request, citing potential interference with law enforcement interests, but a court ruled for ProPublica in January 2015. The NYPD has appealed the decision to the Appellate Division, First Department, and has refused to turn over any responsive documents to date.

The brief supports the lower court’s decision by elaborating on two factors: first, there is a growing consensus among government and civil society actors that transparency about the general use of new surveillance technologies is crucial for accountability and oversight. In particular, the Z Backscatter Vans come at a steep price—the NYPD reportedly spent over $800,000 on each unit—and raise significant concerns over privacy and public health.  X-ray vans are a highly intrusive technology—they utilize the same technology as older airport body scanners, which were removed from airports nationwide after a public outcry over privacy concerns. As the brief argues, the NYPD, as a local law enforcement agency accountable to the people, should not be permitted to withhold all records about its use of an intrusive surveillance technology from the people whom it is ultimately accountable to.

Second, the brief highlights how other law enforcement agencies have publicly disclosed similar records regarding their use of new surveillance technologies without compromising their investigative abilities. For instance, the Department of Homeland Security, as the federal agency tasked with preventing terror, specifically released basic records relating to its use of backscatter technology, thus undercutting the NYPD’s claim that blanket secrecy is required in this instance.

The NYPD’s refusal to disclose any records responsive to their use of backscatter technology is inconsistent with good government practices and the growing trend of similar disclosures made by other law enforcement agencies. The Brennan Center therefore urges the Appellate Division to agree with the trial court and compel the NYPD to release responsive records about the Z Backscatter Vans to ProPublica and the public.  

Download the brief here [PDF]