Estevez v. New York City Police Dept.

Estevez v New York City Police Dept. 2025 NY Slip Op 30380(U) January 30, 2025 Supreme Court, New York County Docket Number: Index No. 151851/2023 Judge: Shahabuddeen A. Ally 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.

[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHAHABUDDEEN A. ALLY PART16 Justice

FRANK ESTEVEZ, INDEX NO. 151851/2023

MOTION DATE 3/27/2023 Petitioner, MOTION SEQ. NO. 001

For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

-against- DECISION & ORDER NEW YORK CITY POLICE DEPARTMENT and CITY OF NEW YORK,

Respondents.

The following e-filed documents, listed by NYSCEF document number, were read on Mot. Seq. No. 1 to/for ARTICLE 78 (BODY OR OFFICER): 1-13, 16-38, 40-41

On July 17, 2023, the Court issued an Interim Order in this special proceeding granting the Verified Petition and Notice of Petition insofar as requiring respondents NEW YORK CITY POLICE DEPARTMENT (the "NYPD") and CITY OF NEW YORK (the "City"; and, together with the NYPD, "Respondents") to submit redacted and unredacted copies of the body-worn camera

("BWC") footage relating to Arrest ID Q2206422-L to the Court for in camera review. (NYSCEF

Doc. 41) The Court assumes familiarity with the Interim Order.

I. PROPRIETY OF REDACTIONS

On August 8, 2023, in compliance with the Interim Order, Respondents submitted the re- dacted and unredacted BWC footage. (See id. Doc. 43) The footage comprises six separate video files. The Court has reviewed the unredacted footage and now determines whether the redactions were properly applied according to the claimed exemptions under New York Public Officers Law ("POL") § 87(2).

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[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025 A. Redactions of Video and Audio Related to the Complainant and Her Child

According to the Vaughn index that Respondents have submitted categorizing each of the redactions and the allegedly applicable exemptions, the overwhelming majority of the redactions applied across the six video files constitute blurring of the female complainant's and her child's face in the footage and removal of any audio in the footage capturing their speech. (See Affirm. of Katherine T. Obanhein in Supp. of Verified Answer, dated Mar. 20, 2023 (NYSCEF Doc. 22), <JI 16; id. Ex. J ("Vaughn Index") (NYSCEF Doc. 37)) Respondents' redaction of these portions of the

footage are based on assertions of exemptions under POL§ 87(2)(b) and (f).

As stated in the Interim Order, it is well settled that the provisions of FOIL are "to be

liberally construed and its exemptions narrowly interpreted so that the public is granted maxi- mum access to the records of government." Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246,252 (1987). The agency relying on an exemption to deny access to a record must "ar- ticulate a particularized and specific justification" for doing so. Dilworth v. Westchester Cnty. Dep't

of Corr., 92 A.D.3d 722, 724 (2d Dep't 2012) (internal quotation marks and citation omitted). To make such a showing, evidentiary support is necessary and conclusory assertions are insufficient. Id.

POL§ 87(2)(b) provides for exemptions of records that "if disclosed would constitute an unwarranted invasion of personal privacy" under POL § 89(2), which includes, but is not limited

to:

i. disclosure of employment, medical or credit histories or personal references of applicants for employment; ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility; iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes; iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency re- questing or maintaining it; v. disclosure of information of a personal nature reported in confi- dence to an agency and not relevant to the ordinary work of such agency; vi, information of a personal nature contained in a workers' compen- sation record, except as provided by section one hundred ten-a of the workers' compensation law;

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[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025 vii, disclosure of electronic contact information, such as an e-mail ad- dress or a social network username, that has been collected from a taxpayer under section one hundred four of the real property tax law; or viii. disclosure of law enforcement arrest or booking photographs of an individual, unless public release of such photographs will serve a specific law enforcement purpose and disclosure is not precluded by any state or federal laws.

POL § 89(2)(b). Absent specific reference to one of the above categories, however, a Court as- sessing the applicability of this exemption must "balance the privacy interests at stake against the public interest in disclosure of information." Regenhard v. City of NY., 102 A.D.3d 612, 613 (1st Dep't 2013).

Initially, while the NYPD has cited numerous cases in support of its position that the re-

daction of the complainant's and her child's faces are proper under POL§ 87(2)(b), the vast ma- jority of those cases involve the potential revelation of names, addresses, or other specific written information that could lead to the identification of the individuals in question. Only one of those

cases actually involves the blurring of faces in video footage, and the relevant decision in that case is unpublished. In Spectrum News NYl v. New York City Police Department, the petitioner sought the release of numerous videos involving NYPD officers' interactions with the public, in-

cluding individuals reporting crimes to officers and individuals in the midst of arrest by officers. See Sup. Ct., N.Y. Cnty., Jan. 29, 2019, Freed, J. Index. No. 150305/2016, NYSCEF Doc. 114 at 3-23. In an Interim Decision issued on January 29, 2019, the court resolved a number of the parties'

disputes concerning the propriety of the redactions that the NYPD applied to certain of the videos pursuant to exemptions under POL § 87(2). See id. at 25-33. Regarding whether the NYPD' s blur- ring of individuals' faces in the videos pursuant to the privacy exemption under POL§ 87(2)(b)

was proper, the court held:

It can hardly be doubted considering the extent of current technology that a person's face is as identifying as his or her name and address. Facial recognition technology has made it possible for people to open their phones with a camera and for computer software to identify individuals. Further, the ease with which videos can now be shared through social me- dia has allowed those captured in so-called viral videos to be identified within a matter of hours or even minutes. The Court must also keep in mind that the members of the public who are captured in the videos did not consent to have their images captured by the police cameras. For these reasons, this Court must consider a person's face to be private, personally identifying information to the same extent as that person's name and

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[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025 address. While the public has an interest in knowing how the NYPD, in general, interacts with other members of the public, it does not have an interest in knowing precisely which individuals those interactions pertain to. To the extent that an agency is permitted to redact other types of per- sonal identifying information, it must similarly be permitted to redact the faces of all members of the public captured in the footage.

Id. at 28.

By contrast, Petitioner cites to New York Lawyers for Public Interest v. New York City Police

Department, wherein the First Department ordered that the faces of bystanders at a murder scene should not be redacted from BWC footage because the privacy interests of the bystanders were

"attenuated" because "the bystanders' expectations of privacy in the public square are limited." 192 A.D.3d 539,540 (1st Dep't 2021).

The Court does not view these decisions as conflicting. Rather, they reflect the respective courts' balancing of the privacy and public interests at stake in each situation under considera-

tion. Nevertheless, this Court agrees with the reasoning in Spectrum News NYl that, as a general

matter, images of an individual's face can, in the present technological environment, amount to

personal identifying information similar to names and addresses. That is not to say, however, that

an individual's face may or must always be redacted from materials disclosed pursuant to POL

§ 87(2)(b). To the contrary, agencies and courts must always engage in the balancing of public

and privacy interests mandated by controlling caselaw, such as Regenhard, 102 A.D.3d 612, on a

case-by-case basis.

In this instance, where the arrest involves a domestic dispute between two individuals,

and the complainant's interaction with NYPD officers was entirely within the confines of her own home, the public has little interest in disclosure of the identity of the complainant or her child,

but the complainant has a significant interest in her own privacy and in the privacy of her child. To the extent that images of their faces can be used to discover their identity, therefore, the NYPD

properly applied the privacy exemption under POL § 87(2)(b) when it redacted the footage to blur the faces of the complainant and her child. Further, there is no countervailing interest in public disclosure of the identities of the complainant and her child on Petitioner's part because he has close personal and familial relationships with both and already knows their identities re-

gardless of the redactions.

[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025

The same cannot be said of the audio of the complainant's interactions with the NYPD

officers. Nothing in the audio, except for any instance in which the complainant may state her name or address or the name or address of her child, 1 can reasonably be viewed as risking expo- sure of her or her child's identity. Further, Respondents' reliance on generalized claims of (1) discouragement of witness cooperation if a witness's statements were subject to disclosure and (2) that a complainant's interactions with the NYPD captures them at their most vulnerable is insufficient to justify withholding the audio under POL§ 87(2)(6 ). See Collins v. N. Y. C. Police Dep't, 55 Misc. 3d 1214(A), at *2 (N.Y. Sup. Ct. N.Y. Cnty. Apr. 27, 2017) ("Respondent's reliance on the claim that witness cooperation would be discouraged is too vague to merit denial of petitioner's

request in this proceeding. If this broad and non-specific reason were enough, then it would bar FOIL requests in every police investigation involving witnesses because respondent could always contend that witnesses would be hesitant to cooperate if their statements were subject to disclo- sure. This is not the purpose of FOIL and this Court will not contravene FOIL' s clear legislative purpose.").

Nor can the life-and-safety exemption under POL § 87(2)(f) shield the audio of the com-

plainant's and her child's interaction with the NYPD officers from disclosure. That exemption allows an agency to withhold materials that "if disclosed could endanger the life or safety of any person." An agency citing this exemption need only demonstrate "a possibility of endanger- ment." Bellamy v. N. Y.C. Police Dep't, 87 A.D.3d 874, 875 (1st Dep't 2011) (internal quotation marks

and citation omitted).

Redactions under the life-and-safety exemption have been upheld in cases where the re- questing party was the defendant in a criminal case or was convicted of the crime that was re- ported. See, e.g., id. at 875; Johnson v. N. Y.C. Police Dep't, 257 A.D.2d 343, 349 (1st Dep't 1999).

Conversely, where the requester was a third party, see Spectrum News NYl, Index No. 150305/2016, NYSCEF Doc. 114, or where the crime was removed in time, see Collins, 55 Misc. 3d 1214(A), the exemption has been found to be inapplicable. As the Court previously observed in the Interim Order, this case sits somewhere in between. Here, it is undisputed that Petitioner was the accused in a report of criminal conduct made by the complainant. Unlike in Johnson or Bellamy, however,

[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025

the Queens District Attorney's Office dismissed the charge against Petitioner prior to arraign- ment.

The Court has reviewed the audio of the complainant's interaction with the NYPD officers

and determines that its disclosure does not pose a threat to the complainant's personal safety to

a degree outweighing the public's interest in the audio. The complainant does not state anything

to the responding NYPD officers of which Petitioner did not already have knowledge or of which

Petitioner was not informed by the NYPD officers at the scene. At the same time, the complain-

ant's statements to the NYPD officers form the basis for Petitioner's arrest and are thus necessary

context to the NYPD officers' actions. The arrest also occurred almost three years ago, and the

charge was dismissed against Petitioner before he was even arraigned. Given this mix of factors,

the Court concludes that the audio of the complainant's interactions with the NYPD officers did

not qualify for redaction pursuant to POL § 87(2)(f).

Moreover, the complainant's child does not state anything in the audio that could con-

ceivably endanger her life or safety. Indeed, the child barely speaks in a comprehensible manner at all. There is no justification, therefore, to redact the audio of the child's speech under POL

§ 87(2)(f).

B. Redactions of NYPD Officers' Conversations

According to the submitted Vaughn index, three of the redactions applied across the six video files constitute removal of the audio of two NYPD officers' conversations. (See Vaughn In-

dex at pp. 4, 10) Two of these redactions are applied to video file 1, and one is applied to video

file 2. (Id.) Respondents base all three redactions on the exemption under POL§ 87(2)(g) for intra-

and inter-agency communications. (Id.)

POL§ 87(2)(g) exempts "inter-agency or intra-agency materials which are not: (i) statisti-

cal or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations." This exemption permits employees of government agencies to ex- change opinions "without the chilling prospect of public disclosure." N. Y. Times Co. v. FDNY, 4 N.Y.3d 477, 488 (2005), thus "ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers." Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 132 (1985) (internal quotation marks and citation omitted).

[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025 The same conversation between NYPD officers is captured in video file 1 at timestamp

08:17.467 - 09:38.967 and video file 2 at timestamp 08:16.900 - 09:38.100. Regardless of whether

that conversation would qualify for exemption from disclosure under POL§ 87(2)(g) on substan-

tive grounds, the conversation clearly takes place within the hearing of the complainant and her

child. As a result, the conversation is not an intra-agency communication exempt from disclosure

under POL§ 87(2)(g). See Spectrum News NYl, Index. No. 150305/2016, NYSCEF Doc. 114 at 26

("[T]he court finds that, where the communication between police officers occurs within the ear-

shot of members of the public, they can no longer be considered an intra-agency communication within the meaning of this exemption.").

The remaining redaction to video file 1, at timestamp 05:05.867 - 06:49.867, does, however, capture a telephone conversation between two NYPD officers that qualifies as an intra-agency

communication subject to exemption under POL § 87(2)(g).

C. Redactions of Video of NYPD Officers' Cellphones

According to the submitted Vaughn index, 17 of the redactions applied across the six video files constitute blurring of footage of NYPD officers' cellphones. (See Vaughn Index at pp. 4, 14,

17-18, 20) Three of these redactions are applied to video file 1, one is applied to video file 3, 10 are

applied to video file 4, and three are applied to video file 6. (Id.) As to the redactions to video file

¹, Respondents base them on both the exemption under POL § 87(2)(b) for invasion of personal

privacy and the exemption under POL§ 87(2)(i) for security of electronic information technology

assets. (Id. at p. 4) As to the redactions to video files 3 and 6, Respondents base them on the ex- emptions under POL § 87(2)(b) and (i) as well as the exemption under POL § 87(2)(g) for intra-

and inter-agency communications. (Id. at pp. 14, 20) Finally, as to the redactions to video file 4,

Respondents base them only on the exemption under POL§ 87(2)(b). (Id. at pp. 17-18)

Under POL § 87(2)(i), an agency may withhold disclosure of material that, "if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures." In the unredacted footage in video file

1, the officer's cellphone appears only very briefly, for no more than five seconds total, and its screen is barely visible. During those few seconds, the officer does not appear to be utilizing any specialized NYPD electronic information system, such as the Mobile Data Terminal ("MDT")

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[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025 system, but instead appears only to be making an ordinary phone call to another NYPD officer or

NYPD personnel. The three redactions applied to video file 1 are, therefore, not proper under the POL § 87(2)(i) exemption.

These redactions, however, are proper under POL § 87(2)(b). Although the cellphone's

screen is visible only for a brief time, the officer does appear to scroll through either her contacts

or her prior incoming and outgoing calls, which may allow members of the public to discern

names and phone numbers for individuals not even part of the arrest. Because of that potential,

and because disclosure of the specific material carries very little public value, the balance weighs in favor of upholding the three redactions to video file 1 under POL§ 87(2)(b).

The same is true for the redactions to video file 4. As to these redactions, Respondents

claim only the exemption under POL§ 87(2)(b) for personal privacy. Upon review of the unre-

dacted footage, the officer in question can be seen entering his personal code to unlock his cell-

phone, scroll through his contacts, and engage in what appears to be a personal text-message

conversation. There does not appear to be any real public interest in disclosure of this material,

given its nature as unrelated to the subject arrest. Weighed against the material's potential to

reveal the officer's code to unlock his cellphone and the names and phone numbers of other indi-

viduals if disclosed, the balance favors upholding the 10 redactions to video file 4 under POL

§ 87(2)(b).

The unredacted footage in video files 3 and 6 shows the officers using what appears to be

the MDT system. Therefore, the one redaction to video file 3 and the three redactions to video file

6 are proper under POL § 87(2)(g) and (i).

D. Redactions of Video of CCTV Cameras

According to the submitted Vaughn index, 19 of the redactions applied across the six video

files constitute blurring of closed-circuit television ("CCTV") monitors. (See Vaughn Index at pp. 14-15, 18) Thirteen of these redactions are applied to video file 3, and six are applied to video file 4. (Id.) With regard to all 19 redactions, Respondents base them on the exemption under POL § 87(2)(b) for invasion of personal privacy and the exemption under POL§ 87(2)(i) for security of

electronic information technology assets. (Id.)

[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025

In the unredacted footage in video files 3 and 4, the officers' BWCs capture a TV monitor

in the background at the police station displaying feeds from several CCTV cameras. Those CCTV cameras appear to capture footage from various places outside and within the police station. In

both video files, the TV monitor is at such a distance that discerning any details of what the CCTV cameras are capturing is difficult-but not impossible.

Respondents do not present any argument in their papers as to why the exemption under POL§ 87(2)(i) for security of electronic information technology assets should apply to the footage

of the TV monitor displaying the CCTV footage. These CCTV cameras, however, are "information

technology assets" within the meaning of POL § 87(2)(i). And to the extent that disclosure of the

CCTV footage could potentially allow the public to understand where each camera is located

outside or inside the police station, members of the public could conceivably use the footage to

tamper with or defeat one or more of these cameras. This outcome is arguably one that POL § 87(2)(i) seeks to guard against. Therefore, Respondents' redaction of the CCTV footage in video

files 3 and 4 is proper under POL § 87(2)(i).

E. Nonresponsive Material

In video files 1, 2, 5, and 6, portions of the footage have been redacted on grounds that it

is nonresponsive to Petitioner's FOIL request. Neither party appears to argue that the material

designated nonresponsive was improperly designated as such. The Court has, however, reviewed

the footage and sees no reason to disturb that designation. The large portions of video files 1 and

² that were marked nonresponsive simply capture NYPD officers filling out paperwork while in complainant's apartment, after Petitioner had been arrest and removed from the premises. The

few minutes of footage redacted from video files 5 and 6 merely shows officers leaving the prem-

ises after Petitioner's removal.

F. Conclusion

Based on the Court's in camera review of the unredacted BWC footage, the Court con- cludes that all redactions were properly applied except for: (1) the redactions applied to the audio of the complainant and her child in video files 1, 2, 3, and 4; and (2) the redactions applied to the audio of the NYPD officers' conversation in video file 1 at timestamp 08:17.467 - 09:38.967 and video file 2 at timestamp 08:16.900 - 09:38.100. These materials must be produced to Petitioner unredacted, with the caveat that the NYPD should re-review the audio of the complainant and

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[FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 P~ INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025 her child to ensure that the name, address, or other specific identifying information of either is not mentioned by the complainant or her child. If it is, that material may be redacted.

II. ATTORNEY'S FEES

Under POL§ 89(4)(c)(ii), a court

shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case un- der the provisions of this section in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access.

Here, the Court finds that Petitioner has not "substantially prevailed." The NYPD pro- duced the BWC footage to Petitioner prior to the commencement of this proceeding, and, as de- termined herein, the majority of the redactions that the NYPD applied to the produced footage

were proper. Therefore, because the statutory requirements are not met, the Court exercises its discretion and declines to award attorney's fees.

The Court has considered the additional contentions of the parties not specifically ad- dressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.

Accordingly, it is hereby

ORDERED and ADJUDGED that the Verified Petition and Notice of Petition (Seq. No. 1)

are GRANTED IN PART to the extent set forth herein and otherwise DENIED IN PART; and it is further

ORDERED that, within 30 days of entry of this Decision and Order, Respondents shall

produce to Petitioner the six video files corresponding to Petitioner's arrest, Arrest ID Q2206422- L, with only those redactions found to be proper herein; and it is further

ORDERED that the Respondents shall serve a copy of this Decision and Order upon Pe- titioner and the Clerk of the General Clerk's Office, with notice of entry within twenty (20) days thereof; and it is further

!FILED: NEW YORK COUNTY CLERK 01/31/2025 01:01 PM INDEX NO. 151851/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 01/31/2025 ORDERED that service upon the Clerk shall be made in accordance with the procedures

set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (Revised August 15, 2019);2 and it is further

ORDERED that the Clerk shall mark Motion Sequence No. 1 decided in all court records;

and it is further

ORDERED that the Clerk shall mark this proceeding disposed in all court records.

This constitutes the decision and order of the Court.

Footnotes

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[4] of 11 [* 4] 1 The Court did not identify any point in the audio in which the complainant did so, but out of an abundance of caution, Respondents should review the audio to ensure that the complainant or her child never stated their names or addresses. 151851/2023 Frank Estevez v. New York City Police Department et al. Page 5 of 11 Mot. Seq. Nos. 001

[5] of 11 [* 5] 151851/2023 Frank Estevez v. New York City Police Department et al. Page6 of 11 Mot. Seq. Nos. 001

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[10] of 11 [* 10] January 30, 2025 DATE DDEEN A. ALLY, A.J.S.C. CHECK ONE: CASE DISPOSED ~ NON-FINAL DISPOSITION APPLICATION: CHECK IF APPROPRIATE: GRANTED SETTLE ORDER □ DENIED X GRANTED IN PART SUBMIT ORDER □ STAY OTHER CASE INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REASSIGN 2 The protocols are available at https:ljwww.nycourts.gov/LegacyPDFS/courts/ljd/supctmanh/Efil-protocol.pdf. 151851/2023 Frank Estevez v. New York City Police Department et al. Page 11 of 11 Mot. Seq. Nos. 001

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