Preview
FILED: NEW YORK COUNTY CLERK 05/20/2024 02:05 PM INDEX NO. 154660/2024
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/20/2024
Via email: bbermudez@rothandrothlaw.com
January 18, 2024
Briana Bermudez
Roth & Roth, LLP
192 Lexington Avenue, Suite 802
New York, NY 10016
Re: Freedom of Information Law (“FOIL”) Appeals re:
MTA FOIL #R000889-090523
Dear Briana Bermudez:
I am writing in response to your FOIL appeal, dated December 20, 2023 and received by the MTA FOIL
Appeals Office on January 3, 2024, regarding the denial of your FOIL request #R000889-090523 for audio
records pertaining to an alleged incident that purportedly occurred on May 21, 2023, at the 63rd
Street/Lexington Avenue, Manhattan bound "E"/"F" train station, involving an individual named Emine
Ozsoy. Specifically, you requested the following records:
1. “The audio recordings and communications regarding the incident and/or generated as a result of
the incident
2. Documents and transcripts that reflect a list of the different types of audio recordings generated as a
result of an incident
3. The communications immediately before and after the incident between NYCTA\MTA employees
regarding the incident of Emine Ozsoy who was injured in this incident
4. The communications, electronic recordings, audio recordings, audio communications from station
employees to Rail Control Center regarding the within incident
5. The communications between NYCTA\MTA employees and any other entity (such as 911/EMS FDNY
or NYPD) regarding the incident
6. The paper records that contain any audio recording transcripts maintained by the NYCTA\MTA
regarding this incident
7. To the extent not covered above, the audio tapes and transcripts, including but not limited to station
agent, EBCS, RTO, RCC, and six wire communications regarding this incident
8. The audio recordings regarding the investigation of this incident to the extent that they are different
than any of the above"
Your FOIL appeal letter challenges the MTA FOIL Team’s November 20, 2023 decision to deny disclosure
of audio recordings pursuant to §87(2)(b) of the New York Public Officers Law (“NYPOL”). NYPOL
§87(2)(b) permits an agency to deny access to records that, if disclosed, would constitute an unwarranted
invasion of personal privacy. Specifically, NYPOL §89(2)(b)(v) states 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." When
investigating your appeal, I found that at least some of the requested audio materials contain personal
FILED: NEW YORK COUNTY CLERK 05/20/2024 02:05 PM INDEX NO. 154660/2024
NYSCEF DOC. NO. 7
2 Broadway RECEIVED NYSCEF: 05/20/2024
NewYork, NY 10004
212 878-7000 Tel
identifiable information (“PII”). This can include information including, but not limited to: home address,
date of birth, social security number, cell phone number, personal medical or health-sensitive information,
Metropolitan
and/or Transportation
other identifying Authority
information. An individual who provides such information has a reasonable
expectation
State of New of privacy. Under normal circumstances, in compliance with NYPOL §89(2)(c)(i) such
York
identifying details could be deleted, however in this case, the MTA FOIL Team has neither the technological
capability to 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 considering the technological inability to remove these specific protected parts, I agree with the
MTA FOIL Team's decision to withhold these records in their entirety rather than expose this PII and subject
employees and other individuals to an unwarranted invasion of personal privacy. I concur that the MTA
FOIL Team properly cited this statutory exemption, thereby appropriately protecting such PII found within
the records.
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 responsive record is internal agency material and therefore falls within the scope of the
inter-agency or intra-agency exemption set forth in NYPOL §87(2)(g). “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 this exemption’s
exceptions could be redacted. In this case however, the MTA FOIL Team does not have the technological
capability to either redact the requested audio files or the capability to cut and/or parse them so as to remove
the parts that contain information not subject to an exception under NYPOL §87(2)(g)(i)-(iv). Considering
the MTA FOIL Team’s technological inability to remove these sections, I find that these materials were
properly withheld in their entirety as intra-agency or inter-agency materials, rather than expose the protected
aspects of this audio record. Based on the forgoing, I concur with the decision of the MTA FOIL Team to
withhold these audio materials, and as such, this portion of your appeal is denied.
Your appeal challenges the MTA FOIL Team’s response that a so-ordered subpoena can be utilized to obtain
an agency video record. After reviewing your FOIL request and this part of the MTA FOIL Team’s
response, I find that the MTA FOIL Team inadvertently utilized the words “video” and “audio” records
interchangeably, as “video” records were not sought in your above-delineated FOIL request. As such, this
part of your appeal is denied as having no bearing on the underlying FOIL.
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
Preview
FILED: NEW YORK COUNTY CLERK 05/20/2024 02:05 PM INDEX NO. 154660/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 05/20/2024 Via email: bbermudez@rothandrothlaw.com January 18, 2024 Briana Bermudez Roth & Roth, LLP 192 Lexington Avenue, Suite 802 New York, NY 10016 Re: Freedom of Information Law (“FOIL”) Appeals re: MTA FOIL #R000889-090523 Dear Briana Bermudez: I am writing in response to your FOIL appeal, dated December 20, 2023 and received by the MTA FOIL Appeals Office on January 3, 2024, regarding the denial of your FOIL request #R000889-090523 for audio records pertaining to an alleged incident that purportedly occurred on May 21, 2023, at the 63rd Street/Lexington Avenue, Manhattan bound "E"/"F" train station, involving an individual named Emine Ozsoy. Specifically, you requested the following records: 1. “The audio recordings and communications regarding the incident and/or generated as a result of the incident 2. Documents and transcripts that reflect a list of the different types of audio recordings generated as a result of an incident 3. The communications immediately before and after the incident between NYCTA\MTA employees regarding the incident of Emine Ozsoy who was injured in this incident 4. The communications, electronic recordings, audio recordings, audio communications from station employees to Rail Control Center regarding the within incident 5. The communications between NYCTA\MTA employees and any other entity (such as 911/EMS FDNY or NYPD) regarding the incident 6. The paper records that contain any audio recording transcripts maintained by the NYCTA\MTA regarding this incident 7. To the extent not covered above, the audio tapes and transcripts, including but not limited to station agent, EBCS, RTO, RCC, and six wire communications regarding this incident 8. The audio recordings regarding the investigation of this incident to the extent that they are different than any of the above" Your FOIL appeal letter challenges the MTA FOIL Team’s November 20, 2023 decision to deny disclosure of audio recordings pursuant to §87(2)(b) of the New York Public Officers Law (“NYPOL”). NYPOL §87(2)(b) permits an agency to deny access to records that, if disclosed, would constitute an unwarranted invasion of personal privacy. Specifically, NYPOL §89(2)(b)(v) states 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." When investigating your appeal, I found that at least some of the requested audio materials contain personal FILED: NEW YORK COUNTY CLERK 05/20/2024 02:05 PM INDEX NO. 154660/2024 NYSCEF DOC. NO. 7 2 Broadway RECEIVED NYSCEF: 05/20/2024 NewYork, NY 10004 212 878-7000 Tel identifiable information (“PII”). This can include information including, but not limited to: home address, date of birth, social security number, cell phone number, personal medical or health-sensitive information, Metropolitan and/or Transportation other identifying Authority information. An individual who provides such information has a reasonable expectation State of New of privacy. Under normal circumstances, in compliance with NYPOL §89(2)(c)(i) such York identifying details could be deleted, however in this case, the MTA FOIL Team has neither the technological capability to 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 considering the technological inability to remove these specific protected parts, I agree with the MTA FOIL Team's decision to withhold these records in their entirety rather than expose this PII and subject employees and other individuals to an unwarranted invasion of personal privacy. I concur that the MTA FOIL Team properly cited this statutory exemption, thereby appropriately protecting such PII found within the records. 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 responsive record is internal agency material and therefore falls within the scope of the inter-agency or intra-agency exemption set forth in NYPOL §87(2)(g). “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 this exemption’s exceptions could be redacted. In this case however, the MTA FOIL Team does not have the technological capability to either redact the requested audio files or the capability to cut and/or parse them so as to remove the parts that contain information not subject to an exception under NYPOL §87(2)(g)(i)-(iv). Considering the MTA FOIL Team’s technological inability to remove these sections, I find that these materials were properly withheld in their entirety as intra-agency or inter-agency materials, rather than expose the protected aspects of this audio record. Based on the forgoing, I concur with the decision of the MTA FOIL Team to withhold these audio materials, and as such, this portion of your appeal is denied. Your appeal challenges the MTA FOIL Team’s response that a so-ordered subpoena can be utilized to obtain an agency video record. After reviewing your FOIL request and this part of the MTA FOIL Team’s response, I find that the MTA FOIL Team inadvertently utilized the words “video” and “audio” records interchangeably, as “video” records were not sought in your above-delineated FOIL request. As such, this part of your appeal is denied as having no bearing on the underlying FOIL. 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