Appeals Court Shields NYPD’s X-Ray Tech

(CN) - The New York Police Department does not have to give a ProPublica reporter records about its use of X-ray-equipped vehicles, a state appeals court ruled.

Z-backscatter vans, as the vehicles are called, use X-rays to scan buildings and vehicles for drugs, explosives and other materials. The X-rays bounce back to the van and create an image, according to court records.

"When a backscatter van is used to scan vehicles, occupants of the vehicle and nearby pedestrians are exposed to low doses of ionizing radiation," the justices of the Manhattan-based First Department New York Appellate Division explained.

Michael Grabell of ProPublica filed a Freedom of Information Law (FOIL) request, seeking the NYPD's records of its deployment, policies and procedures relating to the Z-backscatter vans.

He alleged that the ionizing radiation causes cancer and mutates DNA. He stated that the vans create a radiation dose that is 40 percent greater than an airport scanner.

The NYPD denied Grabell's request, and his administrative appeal was rejected.

Grabell found success last year in the New York County Supreme Court, which ordered the NYPD to produce records that did not relate to any ongoing investigations.

The court also instructed NYPD to release its policies and procedures regarding the vans, as well as their number and cost.

In addition, the court ordered the police to disclose test results of the health effects the vans have on the public.

The NYPD appealed, and the appellate division justices reversed the decision in an unsigned opinion dated May 10.

"The court erred in ordering disclosure of records relating to past deployments, policies, procedures, training materials, aggregate cost and total number of the vans," the ruling states. "These materials are exempt from disclosure under FOIL's law enforcement and public safety exemptions."

The appeals court cited an affidavit from Richard Daddario, the NYPD's deputy commissioner of counterterrorism.

"Daddario explained that in light of the ongoing threat of terrorism, releasing information describing the strategies, operational tactics, uses and numbers of the vans would undermine their deterrent effect, hamper NYPD's counterterrorism operations, and increase the likelihood of another terrorist attack," the 6-page opinion states.

According to Daddario, terrorists could used information about the deployment of the vans to attack in times and places where the vans are not deployed.

However, the appellate justices ruled that information about the radiation should be released, because it would not affect the NYPD's counterterrorism efforts.

"Further, as petitioner points out, information about the safety risks of backscatter technology is already widely available to the public," they wrote. "Thus, release of NYPD's records containing health information about the vans would neither reveal nonroutine investigatory techniques or procedures, nor endanger public safety."

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