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FILED: NEW YORK COUNTY CLERK 05/20/2024 12:20 PM INDEX NO. 154652/2024
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/20/2024
Via email: bbermudez@rothandrothlaw.com
January 18, 2024
Briana Bermudez
192 Lexington Avenue, Suite 802
New York, New York 10016
E
Re: Freedom of Information Law (“FOIL”) Appeal re:
Exhibit
MTA FOIL Request #R00964-091123
Dear Briana Bermudez:
I am writing in response to your FOIL appeal, dated December 22, 2023, regarding the denial of
your FOIL request #R000964-091123 related to an alleged train incident that purportedly
occurred on June 17, 2023, at the 103rd Street Station SB 1 train platform.
Your FOIL appeal letter challenges the MTA FOIL Team’s December 8, 2023 decision denying
disclosure of audio recordings pursuant to New York Public Officers Law (“NYPOL”)
§87(2)(b). In your letter, you assert that there is no “application for personal privacy for these
recordings” per the decision in Friedman v. Rice, 30 NY3d, 461, 475-76 (2017), however this
opinion analyzed whether records “were appropriately withheld under section NYPOL
§87(2)(e)(iii)” rather than §87(2)(b). NYPOL §87(2)(e)(iii) permits an agency to deny
disclosure if the records “…are compiled for law enforcement purposes only to the extent that
disclosure would: identify a confidential source or disclose confidential information relating to a
criminal investigation.” NYPOL §87(2)(b) permits an agency to deny access to records that, if
disclosed, would constitute an unwarranted invasion of personal privacy, stating that "an
unwarranted invasion of personal privacy includes, but shall not be limited to: … (v) disclosure
of information of a personal nature reported in confidence to an agency and not relevant to the
ordinary work of such agency." As such, Friedman v. Rice is inapplicable to this FOIL request
since the audio recordings at issue were withheld by the MTA FOIL Team pursuant to NYPOL
§87(2)(b) rather than §87(2)(e)(iii). Regardless, in reviewing the underlying FOIL and your
appeal, these requested audio materials contain Personal Identifiable Information ("PII"), such as
employee pass numbers. Employee pass numbers are PII that is exempt from FOIL disclosure,
and making such information public would qualify as an unwarranted invasion of personal
privacy. Under normal circumstances, and in compliance with NYPOL §89(2)(c)(i), such
identifying details could be deleted. In this case however, the MTA FOIL Team has neither the
technological capability to either redact the requested audio files nor the capability to cut and/or
parse them so as to remove the parts containing this PII. The MTA FOIL Team has a duty to
protect this information from being made public, and in consideration of the technological
FILED: NEW YORK COUNTY CLERK 05/20/2024 12:20 PM INDEX NO. 154652/2024
NYSCEF DOC. NO. 7
2 Broadway RECEIVED NYSCEF: 05/20/2024
NewYork, NY 10004
212 878-7000 Tel
inability to remove these specific parts, I concur with the MTA FOIL Team's decision to
withhold these records in their entirety rather than expose this PII to public disclosure.
Metropolitan Transportation Authority
State of NewYork
Additionally, these audio recordings are considered intra-agency or inter-agency materials under
NYPOL §87(2)(g). NYPOL §87(2)(g) protects against disclosure of materials that constitute
inter-agency or intra-agency materials, with exceptions for the portions of such materials that
contain: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public;
(iii) final agency policy or determinations; or (iv) external audits, including but not limited to
audits performed by the comptroller and the federal government. The record falls within the
scope of NYPOL §87(2)(g) in that it is internal agency material. “The purpose of the intra-
agency exception is to allow individuals within an agency to exchange their views freely, as part
of the deliberative process, without the concern that those ideas will become public.” Matter of
Town of Waterford v. N.Y. State Dep’t of Env’t Conservation, 18 N.Y.3d 652, 658 (2012). Pre-
decisional materials that contain “opinions, advice, valuations, deliberations, proposals, policy
formulations, conclusions or recommendations” are protected from disclosure. See, Rothenberg
v. City of New York, 191 A.D.2d 195, 196 (1st Dep’t 1993). As stated above, under normal
circumstances, portions of the materials that were not subject to the exemption’s exceptions
could be redacted. In this case however, the MTA FOIL Team does not have the technological
capability either to redact the requested audio files or to cut and/or parse them so as to remove
the sections that contain non-excepted information. Considering the MTA FOIL Team’s
technological inability to remove these sections, these materials are also properly withheld in
their entirety as intra-agency or inter-agency materials, rather than expose the protected PII
aspects of this audio record.
This completes the MTA's response to your FOIL appeal, and this FOIL appeal will now be
closed.
Sincerely,
Harris Berenson
Deputy General Counsel
cc: Committee on Open Government
The agencies of the MTA
MTANewYork City Transit MTAMetro-North Railroad MTAConstruction & Development
MTALong Island Rail Road MTABridges and Tunnels MTABus Company
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FILED: NEW YORK COUNTY CLERK 05/20/2024 12:20 PM INDEX NO. 154652/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/20/2024 Via email: bbermudez@rothandrothlaw.com January 18, 2024 Briana Bermudez 192 Lexington Avenue, Suite 802 New York, New York 10016 E Re: Freedom of Information Law (“FOIL”) Appeal re: Exhibit MTA FOIL Request #R00964-091123 Dear Briana Bermudez: I am writing in response to your FOIL appeal, dated December 22, 2023, regarding the denial of your FOIL request #R000964-091123 related to an alleged train incident that purportedly occurred on June 17, 2023, at the 103rd Street Station SB 1 train platform. Your FOIL appeal letter challenges the MTA FOIL Team’s December 8, 2023 decision denying disclosure of audio recordings pursuant to New York Public Officers Law (“NYPOL”) §87(2)(b). In your letter, you assert that there is no “application for personal privacy for these recordings” per the decision in Friedman v. Rice, 30 NY3d, 461, 475-76 (2017), however this opinion analyzed whether records “were appropriately withheld under section NYPOL §87(2)(e)(iii)” rather than §87(2)(b). NYPOL §87(2)(e)(iii) permits an agency to deny disclosure if the records “…are compiled for law enforcement purposes only to the extent that disclosure would: identify a confidential source or disclose confidential information relating to a criminal investigation.” NYPOL §87(2)(b) permits an agency to deny access to records that, if disclosed, would constitute an unwarranted invasion of personal privacy, stating that "an unwarranted invasion of personal privacy includes, but shall not be limited to: … (v) disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." As such, Friedman v. Rice is inapplicable to this FOIL request since the audio recordings at issue were withheld by the MTA FOIL Team pursuant to NYPOL §87(2)(b) rather than §87(2)(e)(iii). Regardless, in reviewing the underlying FOIL and your appeal, these requested audio materials contain Personal Identifiable Information ("PII"), such as employee pass numbers. Employee pass numbers are PII that is exempt from FOIL disclosure, and making such information public would qualify as an unwarranted invasion of personal privacy. Under normal circumstances, and in compliance with NYPOL §89(2)(c)(i), such identifying details could be deleted. In this case however, the MTA FOIL Team has neither the technological capability to either redact the requested audio files nor the capability to cut and/or parse them so as to remove the parts containing this PII. The MTA FOIL Team has a duty to protect this information from being made public, and in consideration of the technological FILED: NEW YORK COUNTY CLERK 05/20/2024 12:20 PM INDEX NO. 154652/2024 NYSCEF DOC. NO. 7 2 Broadway RECEIVED NYSCEF: 05/20/2024 NewYork, NY 10004 212 878-7000 Tel inability to remove these specific parts, I concur with the MTA FOIL Team's decision to withhold these records in their entirety rather than expose this PII to public disclosure. Metropolitan Transportation Authority State of NewYork Additionally, these audio recordings are considered intra-agency or inter-agency materials under NYPOL §87(2)(g). NYPOL §87(2)(g) protects against disclosure of materials that constitute inter-agency or intra-agency materials, with exceptions for the portions of such materials that contain: (i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; (iii) final agency policy or determinations; or (iv) external audits, including but not limited to audits performed by the comptroller and the federal government. The record falls within the scope of NYPOL §87(2)(g) in that it is internal agency material. “The purpose of the intra- agency exception is to allow individuals within an agency to exchange their views freely, as part of the deliberative process, without the concern that those ideas will become public.” Matter of Town of Waterford v. N.Y. State Dep’t of Env’t Conservation, 18 N.Y.3d 652, 658 (2012). Pre- decisional materials that contain “opinions, advice, valuations, deliberations, proposals, policy formulations, conclusions or recommendations” are protected from disclosure. See, Rothenberg v. City of New York, 191 A.D.2d 195, 196 (1st Dep’t 1993). As stated above, under normal circumstances, portions of the materials that were not subject to the exemption’s exceptions could be redacted. In this case however, the MTA FOIL Team does not have the technological capability either to redact the requested audio files or to cut and/or parse them so as to remove the sections that contain non-excepted information. Considering the MTA FOIL Team’s technological inability to remove these sections, these materials are also properly withheld in their entirety as intra-agency or inter-agency materials, rather than expose the protected PII aspects of this audio record. This completes the MTA's response to your FOIL appeal, and this FOIL appeal will now be closed. Sincerely, Harris Berenson Deputy General Counsel cc: Committee on Open Government The agencies of the MTA MTANewYork City Transit MTAMetro-North Railroad MTAConstruction & Development MTALong Island Rail Road MTABridges and Tunnels MTABus Company