nypd drones - 2014.11.20 notice of petition
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------)
SHAWN
MUSGRAVE,
Petitioner,
-against-
NEW YORK CITY POLICE DEPARTMENT, and
THE CITY OF NEW YORK,
Respondents.
--------------------------------------------------------------------)
NOTICE OF
PETITION
PLEASE
T KE
NOTICE that upon the affirmation
of
Gillian Cassell-Stiga
of
Rankin Taylor, PLLC, sworn to on November
lJ_
2014, and the attached exhibits, the
undersigned petitioner will request this Court, at 9:30 in the forenoon on the
day
of
located at 60 Centre Street, New York, New York, in the Motion Support Courtroom, IAS Part
Room 130, for an Order and Judgment grariting the following relief
to
the undersigned
petitioner:
2 Ordering the respondents pay the reasonable litigation costs
I D 1 < : t l 8 1 1 1 8 f . t ~ M r i ~ i ~
fees pursuant to Public Officers Law Article 6 89 4)c; and
3 Other such relief as the Court finds just and proper
. Dated: New York, New York
J
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November 2014
To:
New
York City Police Department
One Police Plaza, Room 1406
New
York, New York 10038
The City ofNew York
100 Church Street
New York,
New
York 10007
Supreme Court, State ofNew York
County ofNew York
Motion Submission Term, Room 130
60 Centre Street
New York, New York 10007
Respectfully submitted,
illian Cassell-Stiga
Rankin Taylor, PLLC
Park Place, Suite 914
New York, New York 10007
t
212-226-4507
f
212-658-9480
e:
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - {
SHAWN MUSGRAVE,
Petitioner,
-against-
NEW YORK CITY POLICE DEPARTMENT, and
THE CITY OF NEW YORK,
Respondents.
--------------------------------------------------------------------){
VERIFIED PETITION PURSUANT
TO RTICLE 78 OF THE NEW
YORK PR CTICE L W
AND
RULES
'
IndexNo.
f
I, GILLIAN CASSELL-STIGA, an attorney duly licensed to practice law in the Courts
of
the State
of
New York, does hereby verify and affirm, under the penalties of perjury, that the
following is true and accurate:
PRELIMIN RY
STATEMENT
1
Pursuant to the Freedom of Information Law ( FOIL ) and Article 78 of he New
York Civil Law and Rules, the undersigned, petitioner Shawn Musgrave
( Mr.
Musgrave ),
seeks an order directing respondents New York City Police Department ( NYPD ) and The City
of New York ( CITY ) to disclose all NYPD documents and correspondence concerning
remotely piloted aircraft, unmanned aerials, unmanned aerial vehicles, and/or unmanned aerial
systems.
2. Since respondent NYPD has steadfastly refused to respond to the Mr. Musgrave's
FOIL request, and since Mr. Musgrave has exhausted all available administrative remedies, the
Mr. Musgrave respectfully requests the Court order respondents to produce the documents
sought in the Request.
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BACKGROUND
3. On June 9, 2014,
Mr.
Musgrave sent a FOIL request to the FOIL Unit within the
NYPD. See Request from Shawn Musgrave dated June 9, 2014 to the NYPD FOIL Unit,
attached hereto as Exhibit A.
4. The Request sought disclosure o memorandum, e-mails, correspondence, and
other documents or records related to agency use o aerial drones, remotely piloted vehicles
(RPVs), remotely piloted aircraft (RPAs), unmanned aerials (UAs), unmanned aerial vehicles
(UAVs), and/or unmanned aerial systems (UASs) (hereinafter drones ) from January, 2005
unto the present. This Request includes, but is not limited to, documents concerning or related to
the policy, acquisition, use, and training
o
personnel. See Request, Exhibit A, at 1-5.
5. June 24th, 2014, Mr. Musgrave received a letter from the NYPD Records Access
Officer Lieutenant Richard Mantellino ( Office Mantellino ) acknowledging the receipt o his
request, assigning
it
file nun1ber LBF #14PL105084, and informing him further review would be
required and a response estimated in the next 20 days. See Acknowledgment from Officer
Mantellino dated June 24th 2014, attached hereto as Exhibit B.
6. July 18, 2014, Mr. Musgrave then received a letter from Officer Mantellino
informing him the request was denied. See Letter Denial from Officer Mantellino dated July 18,
2014, attached hereto as Exhibit C. The letter stated that Mr. Musgrave could appeal the
decision in writing within 30 days o he date o he letter. See Letter Denial, Exhibit C.
7.
August 5, 2014,
n
compliance with the NYPD's internal procedures, Mr.
Musgrave sent a letter to Jonathan David, Records Access Appeals Officer for NYPD,
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administratively appealing the denial and requesting the production of the documents sought. See
Administrative Appeal to respondent NYPD dated August 5 2014, attached hereto as Exhibit D.
8. August 22, 2014,
Mr.
Musgrave received a letter from Officer David stating that
his appeal was denied. See Appeal Denial from Officer David dated September
19
2014,
attached hereto as Exhibit
E.
9.
Respondent NYPD should have made a determination regarding the
Administrative Appeal within
10
business days
of
receipt by the agency. See 34 R.C.N.Y. 1-
06(d). Further, the NYPD s blanket denial
of Mr.
Musgrave s request sweepingly
claims
the
applicability
of
exemptions without providing a justification
of
the required specificity.
10.
The NYPD has failed
to
provide a single document in response to
Mr.
Musgrave s
request.
JURISDICTION AND VENUE
11. This proceeding pursuant to Article 78
of
the Civil Practice Law and Rules
is
the
proper mechanism for seeking judicial review
of
a state agency s determination with respect to a
FOIL request. N.Y. Pub. Off 89(4)(b).
12. Respondent NYPD is a state agency subject to the FOIL.
t
is also an agency
of
respondent CITY.
13. The undersigned has exhausted respondent NYPD s internal appeals process, and
the instant petition
has
been filed within the four-month period thereafter specified in
C.P
.L.R.
217(1). See
su:gra i i
3-10.
14. Both respondents NYPD and CITY have their central offices located in the
County ofNew York. Venue therefore is proper in this Court. C.P.L.R. 7804(a), 506(b).
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BASIS FOR RELIEF
15. When a State or municipal agency makes a determination which is arbitrary and
capricious, the aggrieved party may challenge that determination in
n
Article
78
petition.
C.P.L.R.
7803(3).
16. In rejecting both the original request and
Mr.
Musgrave's appeal, the
NYPD
has
failed to provide an articulation of a particularized and specific justification for denying access
as required to establish the applicability
of
an exemption, instead merely reciting the statutory
phrasing
of
the exemption.
Capital Newspapers
Div of
Hearst Corp.
v
Burns,
67 N.Y.2d 562
(N.Y. 1986);
DJL Restaurant Corp. v Department ofBldgs., 273
A.D.2d 167 (N.Y.
App.
Div.
1st Dep't 2000) ( affidavits merely repeating the statutory phrasing
of
an exemption are
insufficient to establish the requirement ofparticularity ).
17. Where the good faith invocation
of
the statue is called into question,
the
court
should make an in camera inspection
of
the requested documents.
City ofNewarkv. Law Dep t of
NY.
305 A.D.2d 28
N.Y.
App. Div. 1st Dep't 2003).
REQUEST OR RELIEF
WHEREFORE, the undersigned petitioner respectfully requests this Court enter
an Order either directing respondent NYPD to disclose all documents within the scope
of
the
Request or directing respondent NYPD to submit for in camera inspection copies of all
documents within the scope
of
the Request, for determination by the Court as to the propriety
of
exempting or disclosing saine under the FOIL; awarding the undersigned his legal fees and
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expenses incurred in making the instant petition for relief; and awarding such other and further
relief as the Court may deem
just
and proper.
Dated:
To:
New York, 1 - f ~ Y York
November
J..j
2014
New York City Police Department
One Police Plaza, Room 1406
New
York,
New
York 10038
The City ofNew York
100 Church Street
New York, New York 10007
Supreme Court, State
of
New York
County
of
New York
Motion Submission Term, Room 130
60 Centre Street
New York, New York 10007
Respectfully submitted,
Giiran Cassell-Stiga
Rankin Taylor, PLLC
11 Park Place, Suite 914
New York, New York 10007
t 212-226-4507
f: 212-658-9480
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ATTORNEY S VERIFICATION
I, Gillian Cassell-Stiga, an attorney duly admitted to practice before the Courts of he
State of
New
York, affirm the following to be true under the penalties
of
perjury:
I
am
the attorney
of
record for the Petitioner.
I have read the annexed Petition and know the contents thereof, and the same are true to
my
knowledge, except those matters therein which are stated to be alleged upon information nd
belief, and as to those matters I believe them to be true. y beliefs, as to those matters therein
not stated upon knowledge, are based upon facts, records, and other pertinent information
contained in my files.
This verification is made by
me
because Petitioner does
not
reside
in
the county where I
maintain
my
offices.
Dated:
New
York,
New
York
November / q 201.4
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Records Access Officer
NYC Police Department
F 0 1 L Unit - Legal Bureau
One Police Plaza, Room 110-C
New York, New York I 0038
June 9, 2014
To Whom
t
May Concern:
Pursuant to the New York State Freedom o lnfonnation Law ( 1977 N. Y. Laws ch. 933), J hereby request the
following records:
All documents created from January 2005 to the date this request is processed related to the agency's use
o
aerial
drones, remotely piloted vehicles (RPVs), remotely piloted aircraft (RPAs), unmanned aerials (UAs), unmanned
aerial vehicles (UAVs), and/or unmanned aerial systems (UASs)(hereinafter drones ).
Please note that this
is
the third time we have submitted a FOIL request for this type
o
documentation (see 20 I3-
PL-100448 and 20 I 3-PL-7978). Previously, the NYPD FOIL Unit has invoked personal privacy as well as
disclosure o law enforcement techniques to justify rejections. However, the NYPD's recent statements to the City
Council's Public Safety Committee eliminate both considerations: the Commissioner very publicly confirmed that
the department
is
researching drones, and Deputy Commissioner Miller
indicaK
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Filed via MuekRock.eom
E-mail (Preferred): 11991
For mailed responses, please address (see note):
MuckRock News
DEPT MR 99
PO Box 55819
Boston,
MA
02205-5819
PLEASE NOTE the new address as well as the fact that improperly addressed (i.e., with the requester s name rather
than MuckRock News) requests might be returned by the USPS as undelivernble.
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E
.O.Ll .. l
111
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Box l ()
t5ostnn \
t i R
1 t
l L.
letter
this n
Oll ) J 6
14
\\ (POl
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Room
I IOC
One Polin:
Plaza
New
Julv
8. 2014
RE: FIN
i\
F#14PL 05084
letter is in further response to your letter
June t . O
pursuant to the Freedom In format iun Law ( FO l L
time frame from
i
to
uest is duplicati' e f your prior requc:-:ts
J
JPL l 07978
addition,
your
request
is
the
reasons
final
L Scciion
n
that
may
he
in
..:xistcncc.
In addition,
the requc:sl
is
denied
umkr
POL
seek could endanger
t l K ~
life or
ng
to unmanned
in the
for
disclosure you
Moreover. the request
is
to the extent rcspons11e ir n existence.
would constitute intra-agency materi comprised of preliminary infurmatinn
assessments arc deliberative and pre-decisional
in
nature. :\econlingly. disclosure is not
required pursuant to POL Section S ) g).
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Jonathan David
Records Access Appeals Officer
New York City Police Department
One Police Plaza - Room 1406
New York. NY I 0038-1497
August 5, 2014
Mr. David,
This is an appeal for the blanket rejection ofFOIL l4PLl05084.
Despite the NYPD FOIL Unit's now third assertion, at bare minimum a portion of he requested documents are
squarely within the public domain. The remaining justifications for denying the request are irrelevant, lack factual
grounding and are asserted without substantiation.
Foremost, that I have submitted related FOIL requests in the past has no bearing on the present request for material,
particularly given that the current request incorporates additional information regarding the department's research
into unmanned aerial vehicles. In particular, I cited the Commissioner's recent statements before the City Council's
Public Safety Committee, with which the Commissioner confirmed that the NYPD is investigating UAVs for
department use. This additional guiding information clearly sets this request as distinct from previous requests.
Furthermore, the NYPD's justification for rejecting my request has evolved substantially with each subsequent
request. Beginning with a puzzling determination that personal privacy barred releasing documents in response to
my first request, the NYPD has rejected my previous two requests on highly suspect grounds, and does so again
in
response to my latest request. The appeal determination for my second appeal was grounded foremost in my failure
to file a timely appeal for the first request, rather than on substantive issues. The NYPD FOIL Unit cannot invoke
irrelevant justifications for denying requests.
Similar logical inconsistencies and assertions without justification are at play in this latest request. The foremost
justification for appeal is that this request
is
duplicative
of
my previous two requests. Given the additional
information, passage
of
ime and procedural issues
in
filing my first request, this foremost grounds for denial
is
utterly irrelevant
in
the present FOIL request.
Next, Lt. Mantellino relies on the appeal determination for l3PL107978, which again was errantly grounded
primarily
in
the denial ofmy first appeal, which was due to procedural rather than substantive concerns.
Next, the request denial indicates that releasing documents would reveal non-routine techniques. As asserted
previously, Mayor Bloomberg and now two NYPD Commissioners have publicly disclosed details
of
the
department's investigation into unmanned aerial vehicle technology. There is thus very thin justification to assert that
all documents must
e
withheld
in
the interest ofprotecting non-routine information.
Lt. Mantellino asserts without support that disclosing these records might endanger the life or safety
of
persons in
New York City. Dozens
of
other law enforcement agencies across the country have released documents related to
their use
of
or research into UAVs. This includes federal agencies such as the Bureau ofCustoms and Border
Protection and the FBI that have already deployed UAVs
in
operations. The assertion that releasing documents
might endanger safety or lives requires substantial backing and evidence that Lt. Mantellino has utterly failed to
provide.
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Finally, the rejection letter indicates that some of he documents constitute intra-agency materials comprised of
preliminary information and/or assessments that are deliberative and pre-decisional in nature. While this may e
true for portions of he documents, the Mayor and two NYP Commissioners have publicly stated the department's
intention to pursue
U V
technology. This decision has squarely been taken. While some documents may comprise
pre-decisional materials, there is much that would feasibly not fall within this category.
In light of the above, I respectfully insist
that
this FOIL request be remanded back to the NYPD FOIL Unit for
substantive response and release of responsive documents.
Best,
Shawn Musgrave
MuckRock
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Shawn Musgrave
MuckRock News
DEPT MR 7109
P.O.
Box 55819
Boston.
MA 0220 5
Dear
Mr
Musgrave:
POLICE DEPARTMENT
LEGAL
BUREAU
F.0.1.L. Unit, Room 11
OC
One Police Plaza
New
York,
New
York
10038
July 18, 2014
RE:
FREEDOM
OF
INFORMATION
LA\V
REQUEST:
LSF
14PLl05084
This letter is in further
response
to your letter dated June 9, 2014, requesting disclosure,
pursuant to the Freedom of Information Law ("FOIL"), of various records related to unmanned
aerial vehicles.
That part
of
your request covering the time frame from January,
2005
to October
22,
2013 is denied
because your
instant request is duplicative
of
your prior requests that were
assigned
file
numbers 13PL100448 and 13PLI07978.
In
addition, your request is denied in its entirety for the reasons that were set forth
in
the
February 7,
2014
final
determination of
your appeal under file number 13PL107978, and for the
reasons stated hclow.
Your request
is
denied under
Puhlic Officers I.aw
(POL)
Section 87(2)(e)(iv), which
exempts from disclosure law cnfon.:erncnt records that
re\eal
non-routine investigati\c
tcclrniqw.:s or procedures.
This
exemption applies
to lav
enforcement records that descrihc the
workings
of noYcl
systems that could be used
to
address public saJcty emergencies. inciuding
possible terrorist attacks
and
criminal
ads.
Accordingly. the
disclosure
you seek. were
it to
be
made.
would enahlc miscreants to tailor their conduct
in
anticipation of law enforn;ment efforts
to prc\ent criminal activities. and would therefore not be required under
FOIL
as to any records
that may be
in cxistem:e.
In
addition. the request
is
denied under
POL
Section
X7 2) f)
because
the
disclosure
you
seek
could endanger thc
lit\:
or sakty of
pt.:rsons
in
New York ( 'ity.
\1oremer.
the request is denied to
the
extent that responsive records.
ir n
existence.
would constitute intra-agency materials comprised of preliminary information andior
assessments that are dcliberatin: and pn.:-decisiona in nature. Accordingly. disc losure is not .
requin..:d pursuant lo POL Section S7{2) g).
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You may appeal this decision in writing, within thirty 30) days of the date of this
letter. Any appeal should he addressed to Mr. Jonathan David, Records Access Appeals
Officer, NYPD, ne Police Plaza, Room 1406, New York, NY 10038-1497.
\
m
i } f _ : r e l ~
)
d t )
~
if
-f/
/U v
)
J
i
R i c h a r ~ n t c l l i n o
Lieutenant
Records Access Officer
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On July 22, 2014:
Lt Mantellino -
I hereby
once
again assert
my
right to receive
FOIL
responses
by
electronic mail, rather than
by
postal mail.
Per
89(3)(b), which states
that All
entities shall, provided such entity has reasonable means available, accept
requests
for
records submitted in the form
ofclectronic
mail and shall respond
to
such requests by electronic mail...
to the extent practicable
..
''. this is a legal obligation or
NYPD to
comply with my request.
Please confirm that responses for this request will be sent by electronic mail.
Shawn
On
July 22, 2014:
Lt. Mantellino -
Per the
attached, NYPD was slated
to
respond to issue a determination for this request by July 18, 2014. To date, no
such response has been received. Please advise.
Best,
Shawn
On July
19, 2014:
The
request has been rejected, with
the
agency stating that the information
or
document(s) requested are exempt
from disclosure.
On July 15, 2014:
A letter stating that the request appeal has been rejected.
On
July 3, 2014:
Jonathan David
Records Access Appeals Officer
New York City Police Department
One
Police
Plaza
- Room 1406
New York,
NY
10038-1497
July 3, 2014
Mr. David:
Under the provisions
of
he New York Freedom oflnformation Law, Article 6 89(4)(a)
of
he Public Officers Law, I
hereby request an internal appeal
of
your failure to respond to my FOIL request dated June 9, 2014. A copy of my
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request is attached, along with a letter showing your office received the attached request on June l
6,
2014. The
FOIL Unit did not respond
or
acknowledge the attached request within the five (5) business days as required by
statute, therefore,
the
request has been constructively denied and an internal appeal is appropriate.
Please notify
me
of
he results
of
the appeal without delay.
If
for
any
reason
any
portion
of
my request is again denied, please inform me
of
he reasons for
the
denial in writing
within
the
ten
(10)
days as required by statute.
Sincerely,
Shawn Musgrave
MuckRock
Attachments
On June 24, 2014:
To Whom It May Concern:
I wanted to follow up on the following Freedom
of
Information request, copied below, and originally submitted on
June 9, 2014. Please let
me
know when 1 c n expect to receive a response, or
if
further clarification is needed.
Thank you for
your
help.
On
June 24, 2014:
An
acknowledgement letter, stating the request
is
being processed.
On
June 9, 2014:
To Whom
t
May Concern:
Pursuant to the
New
York State Freedom
of
Information Law (l 977 N.Y. Laws ch. 933), I hereby request the
following records:
All documents created from January 2005 to the date this request is processed related to the agency's use
of
aerial
drones, remotely piloted vehicles (RPVs), remotely piloted aircraft (RPAs), unmanned aerials (UAs), unmanned
aerial vehicles (UAVs), and/or unmanned aerial systems (UASs)(hereinafter drones ).
Please note that this is the third time we have submitted a FOIL request for this type
of
documentation (see 2013-
PL-l
00448 and 20 I 3-PL-7978). Previously, the
NYPD
FOIL Unit has invoked personal privacy as well as
disclosure
of
law enforcement technjques
to
justify rejections. However, the NYPD's recent statements to the City
Council' s Public Safety Committee eliminate both considerations: the Commissioner very publicly confirmed that
the department
is
researching drones, and Deputy Commissioner Miller indicated that
NYPD
officers were looking
into
what's
on the market,
what's
available.
A December 2010 email from a detective in the Counterterrorism Division to
the
FAA (first reported in August
2011: ) indicated that as
of
hat time, the department
was in the basic stages of investigating the possible use
ofUAV's
as a law enforcement tool.
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Please search specifically for the below document categories, and respond to each of he categories and items:
I Acquisition documents:
i
requests for proposals RFPs), proposals/quotes submitted by vendors, contracts, leases, budget requests, project/
equipment budgets, cost allocations or reimbursements for the purchase
of
drone equipment;
ii) Grant applications and award letters for drone equipment purchases;
iii) Insurance contracts for all drone equipment;
iv) Communications including electronic communications) between the agency head or agency quartermaster or
individual responsible for equipment purchases and maintenance) and drone vendors, manufacturers or retailers;
v) Communications including electronic communications) between the agency head and agency quartermaster or
individual responsible for equipment purchases and maintenance) regarding acquisition, lease or use ofdrone
equipment;
vi) Communications including electronic communications) between the agency head and the governor, mayor and
city/town manager regarding the acquisition
of
drones;
vii) Applications including all components and support documentation) for Certificates of Waiver/Authorization
COA) from the Federal Aviation Administration, as well as COA grant notifications and final agreement;
viii) Contracts for services related to drones, such as data storage, data analysis, image storage, image analysis,
video storage, video analysis, operation, maintenance;
2) Equipment logs:
i
Inventories/logs/lists/databases
of
all drones owned, leased or operated by
or
for the agency;
ii) Maintenance logs for all drones owned, leased or otherwise operated by or for the agency;
3) Policy documents:
i
Policies, guidelines, protocols, manuals and/or instructions on the use/operation
of
drones and usage
of
data,
images and video obtained from drone flights;
ii) Communications from the agency head, quartermaster or individual responsible for overseeing equipment
purchases and maintenance) on approved uses for drones;
iii
Memorandums
of
understanding {MOUs), memorandums
of
agreement MOAs) or any other agreements or
contracts with other government agencies, private corporations, organizations
or
individuals to share drone
equipment, data, images
or
video
or
to operate drones on behalfof he agency;
4) Training documents:
i
Curriculum used to train drone operators and observers;
ii
Training log for all drone operators and observers;
iii
Certifications
of
training completion for all drone operators and observers;
iv) Contracts, purchase orders, budget requests or reimbursement orders for training sessions for all drone operators
and observers;
5) Usage documents:
i
Flight logs for all drone flights, including training flights;
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ii
Flight logs transmitted to the Federal Aviation Administration pursuant to Certificate
of
Waiver/Authorization
(COA) requirements;
iii) Reprimands relating to drones, including misuse
of
equipment and failure
to
properly maintain
equipment
also request that,
if
appropriate , fees be waived as believe this request is in the public interest.
The
requested
documents will be made available to the general public free
of
charge as part
of he
public information service at
MuckRock.com, processed by a representative
of
he news media/press and is made in the process
of
news gathering
and not for commercial usage.
In the event that fees cannot be waived, would be grateful if you would inform me
of
he total charges in advance
of
fulfilling my request. I would prefer
the
request filled electronically,
by
e-mail attachment
if
available
or
D-
ROM
if
not.
Thank you
in
advance for your anticipated cooperat ion in this matter. look forward to receiving your response to
this request within 5 business days, as the statute requires.
Sincerely,
Shawn Musgrave
Filed via MuckRock.com
E-mail (Preferred):
99
For mailed responses, please address (see note):
MuckRock
News
EPTMR
11991
PO Box 55819
Boston, MA 02205-5819
PLEASE
NOTE
the new address as well
as
the fact that improperly addressed (i.e., with the requester s name rather
than MuckRock News) requests might be returned by the USPS as undeliverable.
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HI ITE
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is in response to
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RE: EDO:\ OF INFORf\IATIO '\
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8/10/2019 NYPD Drones - 2014.11.20 Notice of Petition
29/30
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