MFIA Wins Important Victory in Data Access Case

On May 11, 2017, the Media Freedom & Information Access (MFIA) Clinic at Yale Law School secured an important victory when the New York Supreme Court granted a petition seeking access to data about the telecommunications conduit infrastructure beneath the streets of New York City.  

The clinic initiated this proceeding in 2014 on behalf of Susan Crawford, the John A. Reilly Clinical Professor of Law at Harvard Law School. Professor Crawford, an expert on internet competition and net neutrality, requested information about the conduit infrastructure in order to better understand why a “digital divide” plagues New York City, preventing poor neighborhoods from accessing high-speed Internet. Professor Crawford’s request concerned data about where the underground conduit is located, what entities occupy it, and where it is vacant in New York City’s underserved communities that lack widespread broadband internet adoption.

New York City’s conduit infrastructure is built, maintained, and offered for rent by Empire City Subway Company, a subsidiary of Verizon that holds a monopoly over the conduit pursuant to an 1891 franchise agreement with the City, according to the clinic. Several commercial service providers intervened in the litigation as respondents, claiming that data concerning the underground conduit they rented from ECS was a “trade secret” and could not be disclosed under the Freedom of Information Law.

The Clinic’s Co-Director, David Schulz, Stanton First Amendment Fellow Hannah Bloch-Wehba, and former clinical teaching fellow and supervising attorney, Jonathan Manes, led a team of students in crafting the petition, successfully opposing the City’s motion to dismiss, and merits briefing. On April 4, 2017, current clinical teaching fellow and supervising attorney, Hannah Bloch-Wehba, argued the merits before Justice Joan Lobis in New York City.

In granting the clinic’s petition, Justice Lobis rejected the City’s assertion that none of the requested information could be released without jeopardizing the city’s information technology assets or the public safety. Instead, she found that the City had failed to satisfy its burden and had “ignored their responsibility to consider the possibility of ‘partial disclosure and careful redaction’” to facilitate access by Professor Crawford without posing a risk to safety or security, according to the clinic. Justice Lobis also rejected the intervening service providers’ argument that the trade secrets doctrine barred disclosure, reasoning that FOIL’s exemptions for commercial information “do not exist to enable service providers to avoid competition.”

The Media Freedom and Information Access Clinic (MFIA) is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation and developing policy initiatives.