FILED: NEW YORK COUNTY CLERK 12/02/ :20 AM INDEX NO /2015 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 12/02/2015

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1 FILED: NEW YORK COUNTY CLERK 12/02/ :20 AM INDEX NO /2015 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 12/02/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x SUSAN CRAWFORD, -against- Petitioner, NEW YORK CITY DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS, Respondent. AFFIRMATION IN SUPPORT OF RESPONDENT S CROSS-MOTION TO DISMISS THE VERIFIED PETITION Index No /2015 I.A.S. Part 23M (Hunter, J.) x ELIZABETH EDMONDS, an attorney duly admitted to practice before the Courts of the State of New York, affirms, pursuant to CPLR 2106, subject to the penalties of perjury, as follows: 1. I am an Assistant Corporation Counsel in the office of Zachary W. Carter, Corporation Counsel of the City of New York, attorney for Respondent, the New York City Department of Information Technology and Telecommunications ( DoITT ), in this Article 78 proceeding. I submit this affirmation on information and belief in support of Respondent s Cross-Motion to Dismiss the Verified Petition, based on my conversations with certain agents and employees of the City of New York and on records maintained by DoITT in the ordinary course of business, which I believe to be true and accurate. 2. In brief, this is the second Article 78 Freedom of Information Law ( FOIL ) proceeding this Petitioner has brought against the same Respondent, in which Petitioner seeks the same information she sought previously, only in a more detailed format. Specifically, Petitioner now seeks a list, rather than maps, of the precise geographic locations of

2 conduits under New York City, and of the conduits respective tenants, such as Verizon and Time Warner Cable. 3. The conduits that run under New York City are essentially tubes that contain copper, coaxial and fiber optic telecommunications cables. These cables are used to provide telephone (including VoIP), cable television and internet service to residents and businesses in New York City. 4. Such cables have been targeted by terrorists and other criminals seeking to cause widespread outages in critical communications. In 2013, cable cutters, possibly terrorists affiliated with the al Qaeda network, targeted undersea cables near Egypt, causing enormous and long-lasting disruptions in internet service. See Alexandra Chang, Why Undersea Internet Cables Are More Vulnerable Than You Think, Wired, April 2, 2013, (last visited November 6, 2015). Similarly, the FBI has reported and is investigating fourteen such critical cable cuts in the past year in California, which, among other problems, halted 911 systems in many municipalities. See Addady, Michael, Somebody Keeps Cutting Internet Cables in California, Fortune, September 16, 2015, (last visited November 5, 2015). 5. A recent New York Times story, referring to undersea cables of the same sort that run through the conduits in New York City, explained, The role of the cables is more important than ever before. They carry global business worth more than $10 trillion a day, including from financial institutions that settle transactions on them every second. Any significant disruption would cut the flow of capital. The cables also carry more than 95 percent of daily communications. So important are undersea cables that the Department of Homeland - 2 -

3 Security lists their landing areas mostly around New York, Miami and Los Angeles at the top of its list of critical infrastructure. Russian Ships Near Data Cables Too Close for U.S. Comfort, October 25, 2015, (retrieved October 30, 2015)(emphasis added). Similarly, in November 2015, the New York Times published an article titled The Cyberthreat Under the Street which focused on the safety risks created by access to underground cables. See Kate Murphy, The Cyberthreat Under the Street, November 7, 2015, (retrieved November 10, 2015). The article reported that one academic recently completed a map of the long-haul internet infrastructure in the United States and that only researchers approved by the Department of Homeland Security can access the map because of concerns about what could be done if the information were made available to the public. Id. 6. In denying Petitioner s previous FOIL Petition, Justice Hagler of the New York Supreme Court has already found that DoITT properly withheld the precise locations of conduits from this same Petitioner, and from the public at large, due to the serious concerns for public safety. A copy of Justice Hagler s Decision and Order, dated March 20, 2014 ( Decision ), with his later short-form order, issued December 8, 2014, dismissing the entire proceeding, is annexed here as Exhibit Accordingly, as Petitioner seeks the same information she sought in a previous proceeding, which she lost, the Petition should be denied on the grounds of res judicata, or claim preclusion. Additionally, a portion of the Petition should be dismissed on the grounds that it is duplicative of Petitioner s previous request, which was not administratively appealed, and so is time barred

4 Petitioner s First FOIL Proceeding Against DoITT in On January 24, 2012, Petitioner filed a FOIL request with DoITT seeking all records concerning: (1) the geographic location of conduits owned by Empire City Subway ( ECS ), (2) the geographic location of conduits operated by ECS, (3) the current contract or operating agreement between New York City and ECS, (4) all previous contracts or operating agreements between New York City and ECS, (5) rental rates ECS is authorized to charge potential franchisees, and (6) the names of current franchisees renting ECS-owned ducts. 9. In response to the 2012 FOIL request, on May 11, 2012, DoITT provided documents responsive to Petitioner s requests for items 3, 5, and 6. DoITT also informed Petitioner that it did not possess any records responsive to request item number With respect to Petitioner s request for item numbers 1 and 2, which sought respectively the geographic location of conduits owned by ECS, and the geographic location of conduits operated by ECS, in a letter dated June 22, 2012, DoITT informed Petitioner that it had in its possession only a single set of documents responsive to Petitioner s request. These documents were a set of 41 maps that depict the geographic locations of conduits in New York City. 11. However, DoITT invoked FOIL exemptions 87(2)(i) ( the infrastructure exemption ) and 87(2)(f) ( the life safety exemption ) and withheld the responsive maps, after consulting with the NYPD Counterterrorism Division, which expressed grave concern with the maps potential release. 12. On November 20, 2012, Petitioner commenced an Article 78 proceeding against DoITT challenging DoITT s partial denial of her FOIL request for documents concerning - 4 -

5 the geographic location of conduits ( the 2012 proceeding ). A copy of the first Verified Petition, dated November 20, 2012, without exhibits, is annexed here as Exhibit In the 2012 proceeding, Petitioner did not challenge the sufficiency of DoITT s disclosure of records concerning the names of current franchisees renting ECS-owned ducts, as requested in item number 6 of her FOIL request. See Ex As explained above, in a Decision and Order dated March 20, 2014, Justice Shlomo Hagler upheld DoITT s determination to withhold the records showing the geographic locations of conduits, and denied the Verified Petition. See Ex In his Decision, Justice Hagler held that the conduits are electronic information systems and infrastructures, within the meaning of FOIL exemption 87(2)(i). See Decision, Ex. 1, at 6. Justice Hagler further explained that Sgt. Wingert of NYPD s Counterterrorism Division predicts that the release of the precise location of the conduits would make our fiber optic network more susceptible to terrorist or other attack. Id. at 8-9. Accordingly, Justice Hagler deferred to NYPD s professional expertise and held that disclosure of the precise locations of the conduits would jeopardize Respondent s ability to guarantee the security of its information technology assets. Id. at 9. Petitioner did not appeal the portion of Justice Hagler s Order that found that DoITT had properly withheld the records. 1 The Current Susan Crawford FOIL Proceeding Against DoITT 16. On May 9, 2014, less than two months after Justice Hagler s Decision concerning her first FOIL request, Petitioner submitted a new FOIL request to DoITT, in which Petitioner sought 23 categories of records. A copy of Petitioner s FOIL request, dated May 9, 2014, is annexed here as Exhibit 3. 1 Petitioner only appealed the portion of Justice Hagler s Order that required all post-petition papers be filed under seal; that appeal is currently pending before the First Department

6 17. Due to the voluminous nature of Petitioner s request, DoITT partially responded to Petitioner s request in multiple letters. By letter dated January 30, 2015, a copy of which is annexed here as Exhibit 4, DoITT issued a final determination on Petitioner s FOIL request. As of January 30, 2015, DoITT had either provided records responsive to Petitioner s request or certified that it had no responsive records for 22 of the 23 categories of records Petitioner sought. See Ex The only request that remained at issue was request item 11, which sought records sufficient to disclose for each year since 2004 the total number of conduits owned or operated by ECS, broken down by the smallest geographic unit available to DoITT (e.g., a zip code, neighborhood, block, or similar defined region). In response to this request, DoITT provided a spreadsheet that inventoried the location of all conduits and number of conduits owned or operated by ECS ( the spreadsheet ). Specifically, the spreadsheet had six columns: from [manhole] #, from location, to [manhole #], to location, customer, and ducts. DoITT redacted the columns with specific conduit location information namely, the columns with from location and to location, citing Public Officers Law 87(2)(i), as disclosure of such information would jeopardize the capacity of an entity that has shared information with an agency to guarantee the security of its information technology assets. DoITT also redacted the customer column under Public Officers Law 87(2)(d). 2 The 2 Petitioner had also sought the names of the occupants of the conduits in her request item 6; such information fell under the customer column of the spreadsheet. Such occupants are tenants of ECS, such as Time Warner, and Verizon. As discussed below, this request was duplicative of a previous request made in 2012, which Petitioner did not administratively appeal. In response to both the 2012 and 2015 requests, DoITT disclosed a list of the ECS tenants to Petitioner. DoITT also redacted the names of the tenants from the portion of the spreadsheet that matched the tenants to the particular conduit they occupied. However, because DoITT did not disclose the precise locations of the conduits to Petitioner, any further disclosure of the names of the ECS tenants, linked to such locations, which were redacted, would be academic and - 6 -

7 spreadsheet was the only document DoITT had in its possession that was responsive to Petitioner s request, aside from the set of maps Petitioner had previously sought, and which Justice Hagler held were properly withheld. 19. By dated February 26, 2015, Petitioner appealed DoITT s redactions of the spreadsheet, asserting all geographic locations of the conduits in the spreadsheet are not properly withheld under Public Officers Law Section 87(2)(i). Petitioner also appealed DoITT s decision to redact the names of the ECS customers from the spreadsheet with locational information. A copy of Petitioner s appeal is annexed here as Exhibit By letter dated March 12, 2015, DoITT, through its General Counsel, Charles Fraser, denied Petitioner s appeal. In pertinent part, DoITT explained, As you are aware, you previously sought production of maps showing the location of ECS conduits. DoITT denied your request pursuant to POL section 87(2)(i), and that denial was sustained in Crawford v. New York City Department of Information Technology and Telecommunications, 982 N.Y.S.2d 725, 741 (S. Ct. N.Y. Co. 2014). The conduit location information on the unredacted spreadsheet is no less sensitive than the conduit location information on the maps, and therefore the Crawford case is dispositive. You assert that the manhole locations should be disclosed because disclosure would not reveal the path of conduit between manholes. I disagree in two respects. First, because conduits connect to manholes, disclosure of manhole locations would itself disclose conduit locations. Second, while disclosure of manhole locations would leave some degree of uncertainty about the location of conduit between manholes, that uncertainty in most cases would be a matter of not more than a few feet about the same level of uncertainty as for the maps. redundant at this stage of the proceeding, where Petitioner already possesses such a list of all tenants

8 Thus the manhole locations sufficiently describe the pathways of conduit between manholes as to expose the risk identified by the Crawford court. A copy of DoITT s letter, dated March 12, 2015, is annexed here as Exhibit This Article 78 proceeding followed. Both Petitioner s 2012 FOIL Request and the Current Request Seek the Same Information: the Geographic Locations of Telecommunications Cable Conduits Under New York City 22. In Petitioner s first FOIL request in 2012 (Ex. 2), she sought the geographic locations of conduits owned by ECS and the geographic locations of conduits operated by ECS. In Petitioner s 2014 FOIL request, she sought records sufficient to disclose for each year since 2004 the total number of conduits owned or operated by ECS, broken down by the smallest geographic unit available to DoITT (e.g., a zip code, neighborhood, block, or similar defined region). Ex After DoITT provided the spreadsheet in redacted form, Petitioner appealed DoITT s redactions of geographic locations of the conduits. Ex. 5. Petitioner further clarified in an affirmation accompanying the Verified Petition that the locations of the conduits and their occupancy information are what she seeks, explaining that the public cannot evaluate DoITT s performance without access to the conduit location and occupancy information sought by this FOIL request. Affirmation of Susan Crawford, sworn to July 2, 2015, at 20. Thus, in the current proceeding Petitioner again seeks the geographic locations of internet conduits. Compare Ex. 2 with Ex. 5. The Responsive Documents in DoITT s Possession 24. In the 2012 proceeding, the only responsive documents to Petitioner s request for the geographic locations of internet conduits that DoITT had in its possession was the set of 41 maps

9 25. However, in late 2014, DoITT acquired a spreadsheet from ECS that would have been responsive to Petitioner s 2012 FOIL request. As discussed above, in early 2015, in response to Petitioner s second FOIL request, DoITT disclosed the spreadsheet to Petitioner in redacted form. 26. The spreadsheet contains various information, including the same information as the maps namely, the precise locations of telecommunications cable conduits in New York City. Indeed, where the maps provided just a visual depiction of the locations of the conduits, the spreadsheet is even more detailed, insofar as it provides the exact locations of the entrances to the conduits through manholes. For example, where the maps merely showed a dot or a line, the spreadsheet states precise addresses and locations, such as, hypothetically, NE corner of 100 Main Street. 27. Granting the public access to such conduit location information is precisely what Justice Hagler refused to do in the 2012 FOIL proceeding, when he deferred to NYPD s determination that disclosure of the precise location of the conduits would make our fiber optic network more susceptible to terrorist or other attack. Decision, Ex. 1, at 9. Petitioner s Request for Names of Tenants of the Conduits is Duplicative and Barred by the Statute of Limitations 28. In Petitioner s first FOIL request, dated January 24, 2012, she sought as item 6 the names of current franchisees renting ECS-owned ducts. Ex. 2, at 8. With a letter dated May 11, 2012, Respondent provided to Petitioner the names of franchisees renting conduits from ECS. Ex. 2, at 11. Although Petitioner appealed DoITT s partial denial of her FOIL request, that appeal concerned only the portion of DoITT s decision concerning the geographic locations of telecommunications cable conduits. Ex. 2, at 13. Petitioner made no - 9 -

10 appeal concerning Respondent s disclosure of the names of franchisees renting conduit from ECS and also did not raise this issue in the 2012 proceeding. 29. In Petitioner s second FOIL request, three years later, which led to the commencement of the case at bar, she again sought as item 6 the names of the occupants [of ECS owned ducts] and the respective accounts of such space occupied by each occupant and the number and kind of electrical conductors therein, with the names of the owners or users thereof. See Ex DoITT provided certain documents responsive to this request, but redacted the names of the ECS tenants in the customer column on the spreadsheet that matched them to specific locational information, under Public Officers Law 87(2)(d), as records that are submitted to an agency by a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise For example, where the spreadsheet would have shown the specific location of the conduit and the tenant, or customer, of that conduit, such as NE Corner of 100 Main Street; NYPD, Verizon, DoITT redacted both the locational information and the tenant names. 32. Petitioner then appealed DoITT s redaction of the names of tenants from the spreadsheet. See Ex. 5. That is, Petitioner appealed DoITT s redaction of the names of current franchisees renting ECS-owned ducts, which is precisely the information she sought in her first FOIL request in Respondent issued a final determination to Petitioner s first FOIL request on June 2, See Ex. 2, at 12. Petitioner did not administratively appeal Respondent s 3 Although not at issue, DoITT also provided a copy of the ECS Duct Utilization System (DUS) Occupancy Report, as of 12/31/200 to Petiitoner

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12 Index No /2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SUSAN CRAWFORD, -against- THE NEW YORK CITY DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS, Petitioner, Respondent. AFFIRMATION OF COUNSEL IN SUPPORT OF RESPONDENT S CROSS-MOTION TO DISMISS THE VERIFIED PETITION ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondent 100 Church Street New York, New York Of Counsel: Elizabeth Edmonds Tel: (212) Due and timely service is hereby admitted. New York, N.Y...., Esq. Attorney for...