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ProPublica Can Peer Into the NYPD’s X-Ray Tech

MANHATTAN (CN) - The NYPD must turn over records to ProPublica about a controversial X-ray abetted surveillance program the department has long tried to keep a secret, a state Supreme Court Judge ruled.

For years, the New York Police Department has used Z-backscatter vans, Pentagon technology originally deployed in Afghanistan, to detect bombs, bomb-making equipment, drugs and other contraband.

ProPublica's Michael Grabell has fought for nearly three years to "reveal whether the NYPD has taken steps necessary to protect drivers, passengers and pedestrians from exposure to potentially harmful ionizing radiation" from the technology.

But the department has refused to release a single document, citing concerns that terrorists might use the information they contain to evade detection.

On review, state Supreme Judge Doris Ling-Cohan noted that the hazardous reputation of the vehicles is beyond dispute.

In 2011, the European Union banned the use of backscatter technology in EU airports based on studies that suggested the low-level radiation emitted by the technology increases the cancer-risk of those exposed to it.

Moreover, the NYPD did not contest ProPublica's finding that the technology poses "significant health risks associated with the use of backscatter x-ray devices [as] these machines use ionizing radiation, a type of radiation long known to mutate DNA and cause cancer," the opinion states.Those aren't the only concerns associated with the technology. The Transportation Security Administration recently removed all of its backscatter X-ray body scanners from airports in the United States because the devices failed to comply with privacy requirements established by Congress, the opinion says.

On Feb. 15, 2002, Grabell filed a Freedom of Information Act request seeking extensive information about the NYPD's use of the technology, such as its deployments, training materials, safety reports, legal opinions, contracting documents, policies and procedures and type of data and images stored.

The New York City Law Department claimed a law enforcement exemption and asserted that disclosure would endanger the lives and safety of the public to quash the request.

But Judge Ling-Cohan refused to let the fear of terrorism keep New Yorkers in the dark about the technology.

"While this court is cognizant and sensitive to concerns about terrorism, being located less than a mile from the 9/11 site, and having seen first-hand the effects of terrorist destruction, nonetheless, the hallmark of our great nation is that it is a democracy, with a transparent government," she wrote.

She added later: "It is only through disclosure, public review and scrutiny, that potentially dangerous equipment and/or techniques, can be called into question, for the health and well being of the public at large."

To shield sensitive information, Ling-Cohan allowed for certain redactions, and denied a portion of the request seeking a legal opinion detailing when the technology can be used.

A New York City Law Department spokesman said that it has "appealed because disclosing this sensitive information would compromise public safety."

ProPublica's lawyer David Schulz, of the firm Levine Sullivan Koch & Schulz LLP, said in a phone interview that he was "not surprised" by that development.

"This is a case where the police took an absolute position that can disclose nothing about what they do if it's related even tangentially about terrorism, which can't be right," he said. "When those risks are claimed, they have to have a logical basis."

Schulz added that the NYPD claimed that any and all information about its X-ray vans posed a security risk, including whether the department performed any studies on the radiation's effects on human health.

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