State police win right to "neither confirm nor deny" records exist

Luis Ferre Sadurni | Freedom of Information | News | June 15, 2016

Earlier this month a New York appellate court affirmed the New York City Police Department's decision to "neither confirm nor deny" the existence of records on the surveillance of two Muslim men. The NYPD's response, also known as a Glomar response and traditionally used by federal agencies, marks the first time a state appellate court has upheld its use by a local government entity, setting a troubling legal precedent and a hurdle for open government advocates.

The decision, announced on June 2 by a panel of judges of the state's Supreme Court Appellate Division, regards Samir Hashmi and Talib W. Abdur-Rashid's New York Freedom of Information Law (FOIL) requests for records on their surveillance by the NYPD.

Hashmi and Abdur-Rashid's - a Rutgers University student and imam at a Harlem mosque, respectively - requests came after a 2011 Associated Press Pulitzer-winning investigation on the NYPD's massive surveillance program of the city's Muslim communities following the 9/11 attacks.

Using the Glomar response, the NYPD refused to acknowledge the existence or non-existence of the surveillance records requested. The Glomar response traces its origins to the Cold War era when, in 1975, the Central Intelligence Agency built a salvage vessel called the Glomar Explorer to retrieve a sunken Soviet submarine off the coast of Hawaii. When a Los Angles Times's reporter filed a Freedom of Information Act (FOIA) request of the operation, the agency said it could "neither confirm nor deny" its existence.

Since then, federal courts have upheld the Glomar doctrine as a valid response to FOIA requests, traditionally in matters regarding national security. The New York appellate court's decision to affirm a municipal law enforcement agency's use of a Glomar response was worrisome to experts.

"For all I know, Glomar is now acceptable in other states," said Robert Freeman, executive director of the New York State Committee on Open Government.

"This is a nation of law and this law is pretty clear, in the scheme of things," Freeman added. "Glomar is simply inconsistent with our statutes."

The appellants argued that under FOIL, a government agency can only respond in three ways to a request: 1) by producing the requested documents, 2) by withholding the documents if a specific exemption applies, and 3) by informing the requester that it does not have the responsive records.

The Reporters Committee, in an amicus brief joined by 20 other media organizations, added that the Glomar doctrine "was developed to address uniquely federal concerns" and that language in FOIL "expressly prohibits evasive, Glomar-like responses." FOIL §89(8) reads, "Any person who, with intent to prevent public inspection of a record pursuant to this article, willfully conceals or destroys any such record shall be guilty of a violation."

However, the NYPD's affidavit stating that confirming or denying the existence of the records would jeopardize their operations convinced the panel of judges that the Glomar doctrine is consistent with FOIL's legislative intent "since it allows an agency to safeguard information that falls under a FOIL exemption."

The court's decision noted that it did not suggest that any FOIL request for NYPD records would justify a Glomar response, but that, "In view of the heightened law enforcement and public safety concerns identified ... Glomar responses were appropriate here."

“We are all safer because of this ruling, which confirms that the NYPD is not required to reveal the targets of counterterrorism surveillance,” Nick Paolucci, a spokesman for the city’s Law Department, told the Associated Press.

However, open government advocates worried the decision might set a precedent for other local agencies across the country to use the Glomar doctrine in response to public records requests.

"The NYPD, in some ways, is an interesting animal in that it's more like an intelligence agency than a lot of other local law enforcement," said Lauren Harper, Director of Communications at the National Security Archives.

"But it is troubling because once you see different jurisdictions get the OK to use this you can't help but have other local agencies be tempted to do the same thing," Harper said. "Would I be surprised if other local agencies did this as well? No."

The decision also sheds light on the NYPD's counter-terrorism and intelligence gathering capabilities in the post-9/11 world, which has altered the role of many local law enforcement entities nationwide. As cities become more susceptible to terror attacks, local police departments have increasingly engaged in counter-terrorism operations to deal with national security issues. The NYPD's use of the Glomar doctrine highlights its increasing resemblance to an intelligence agency.

The NYPD did not respond to a request for comment.

"I think you could reasonably expect to see [more Glomar responses] in places where there are national security implications," Harper said. "In New York it makes sense because of 9/11, as do areas in Virginia and Washington D.C., of course, but it could stretch to other cases."

Open records requesters in the District of Columbia have seen local agencies, such as the Metropolitan Police Department (MPD) of Washington DC, use the Glomar doctrine to respond to records requests that have no national security implications. The D.C. Mayor’s Office, for example, has upheld the MPD’s ability to invoke Glomar powers when responding to requests for citizen complaints against officers, holding disclosure “could have a stigmatizing effect” on the officers’ reputation.

Attorneys have considered appealing similar upheld Glomar responses, but noted the uphill battle of a potential litigation.

“In the District of Columbia, since our Freedom of Information Act is very much like the federal statute, our courts regard federal case law as a significant body of precedent,” said Fritz Mulhauser, a former American Civil Liberties Union attorney who specialized in police accountability in D.C.

“I’ve looked long and hard at the question of whether to sue the District,” said Mulhauser, who acknowledged receiving numerous Glomar responses from the MPD. “I concluded that we would probably lose.”

Freeman also noted the near impossibility for requesters to win in litigation involving Glomar responses to public records requests.

"You look at at FOIA and FOIL and both of them indicate that when a person is denied access and initiate a lawsuit, the government has the burden of proof," Freeman said. "How can it be that the burden of proof is met when the agency says, 'Well, we're not going to tell you whether we have anything, but if we do, we would deny access anyways.' How could that be reflective of meeting the burden of proof?"

Omar T. Mohammedi, the appellants' lawyer based in New York City, said he is in the process of filing a permission to appeal the decision to the state Court of Appeals, New York's highest court.

"There are conditions under which the Court of Appeals will grant permission," Mohammedi said. "One of them is novelty and I believe this case is novel. [Another condition is] if it affects people statewide and this is definitely going to affect people statewide. We're really hoping that we will get that permission because we believe we have a good, strong argument to reverse this decision."

The permission to appeal is due early July.

Six of the seven judges in the New York Court of Appeals were named by Democrat Governor Andrew Cuomo since 2013. Janet DiFiore, a former district attorney of Westchester County, took office as Chief Judge in January 2016.

"We have several relatively new judges on the Court of Appeals and the Chief Judge is a former prosecutor," Freeman said. "How this would sit with her? I just don't know."

He added, "It's a crapshoot now."