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NEW YORK SUPREME COURT

APPELLATE DIVISION: FIRST DEPARTMENT

~~- ~~- - - - - - - - - - - - - - - - - - - - - - - - - - -.- - - x


TALIB W, ADBUR-RASHID,
Petitioner-Appellant,
Sup, Court, New York County
Index No, 10 1559/20 13

-againstNUW YORK CITY POLICE DEPARTMENT,


and RAYMOND KELLY,
in his official capacity as commissioner of the
New York City Police Department,

RECEIVED
AUG ''''5 lOf5

Respondents- Respondents.
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suP COUf~'TI\PP. DI\!.


FIRST DEPT.

CI
CCl

AFFIRMATION OF MARIKa HIROSE IN SUPPORT OF MOTION BY


THE NEW YORK CIVIL LIBERTIES UNION AND THE BRENNAN
CENTER IfOR JUSTICE FOR LEAVE TO FILE AMICI CURIAE BRIEF
Marika Hirose, an attorney admitted to practice before the courts of New
York, affirms the following to be true under penalty of perjury:
l,
Foundation,

I am an attorney at the New York Civil Liberties Union (NYCLD)


On behalf of the NYCLD and the Brennan Center for Justice, I

submit this affirmation in support of the motion for leave to file the attached brief
as amici curiae in support of Petitioner-Appellant

Talib Abdur-Rashid in this

matter raising an important issue of whether the Glomar doctrine should be


incorporated from federal law into the Freedom of Information Law, The Glomar
doctrine has permitted federal agendes, in narrow circumstances often related to

national security, to circumvent requests under the federal Freedom of Information


Act by neither confirming nor denying that responsive records exist. The lower
court in this case permitted a Glomar response for the first time in the history of
New York FOIL.
2.

The NYCLU, the New York State affiliate of the American Civil

Liberties Union, is a non-profit, non-partisan organization with tens of thousands


of members. The NYCLU is committed to the defense and protection of civil
rights and civil liberties, including the right to be free of unwarranted government
surveillance and unjustified police actions. Attorneys from the NYCLU are
litigating Raza v. City of New York, No. 13 Civ. 3448 (E.D.N.Y.), the
constitutional challenge to the NYPD's suspicionless surveillance of mosques and
Muslim communities, and Handschu v. Special Serv. Div., No. 71 Civ. 2203
(S.D.N.Y.), the constitutional challenge to the NYPD's surveillance of
communities based on political affiliations.
3.

The NYCLU frequently uses FOIL in its work, and has litigated a

number of FOIL cases to compel government agencies to comply with their


obligations to produce records. See, e.g., N Y. Civil Liberties Union v. City of
Schenectady, 2 N.Y.3d 657 (2004) (reversing lower court denial of incident reports
pertaining to use of force); N. Y. Civil Liberties Union v. City of Saratoga Springs,
87 A.D.3d 336 (3d Dep't 2011) (granting fees in case seeking the police
2

department's use oftasers); N.Y Civil Liberties Union v. City of NY Police Dep't,
74 A.D.3d 632 (lst Dep't 2010) (granting request for records identifying the race
of persons shot at but not hit by NYPD officers); N. Y Civil Liberties Union v. Erie
Cty. Sheriff's Office, 47 Misc. 3d l20l(A) (Supreme Court, Erie County Mar. 17,
2015) (granting request for records related to "stingrays" surveillance equipment);
N. Y Civil Liberties Union v. City ofN. Y Police Dep't, 20 Misc.3d 1l08(A)
(Supreme Court, New York County May 7,2008) (granting request for stop-andfrisk database).
4.

The NYCLD is well-positioned to be of assistance to this Court

because of its familiarity with FOIL as well as its experience in litigating Glomar
responses under the federal Freedom of Information Act. See, e.g., N. Y Times v.
Us. Dep 't of Justice, 756 F.3d 100 (2d Ciro 2014) (ACLD and the New York
Times seeking records related to lawfulness of targeted killings); Am. Civil
Liberties Union v. Cent. Intelligence Agency, 710 F.3d 422 (D.C. Ciro 2013)
(ACLD seeking records relating to drone strikes); Am. Civil Liberties Union v.
Fed. Bureau of Investigation, 59 F. Supp. 3d 584 (S.D.N.Y. 2014) (ACLD and
NYCLD lawyers seeking records relating to government's bulk collection of
information other than telephony metadata); Am. Civil Liberties Union v. Us.
Dep 't of Dej, 752 F. Supp. 2d 361 (S.D.N.Y. 2010) (ACLD and NYCLD lawyers
seeking records relating to detention of prisoners in Afghanistan).
3

5.

From this experience,

doctrine has undermined


FOIL by encouraging

6.
non-partisan
democracy

the NYCLU understands

well how the Glomar

FOlA and how it would likely have a similar effect on

government

secrecy and cutting off public debate.

Co-amici the Brennan Center for Justice at NYU School of Law is a


public policy and law institute focused on fundamental
and justice, including the intersection

liberties as well as the importance

of government

issues of

of national security and civil


transparency

and accountability.'

The Center's Liberty and National Security (LNS) Program uses innovative policy
recommendations,

litigation, and public advocacy to advance effective national

security policies that respect the rule of law and constitutional


excessive government

secrecy is one of the LNS Program's

values. Reining in
main areas of focus,

and the Brennan Center has issued several reports on the need to increase the
transparency

of national security policies and activities.

See, e.g., BRENNAN

CENTERFORJUSTICE, STRENGTHENINGINTELLIGENCEOVERSIGHT(Michael
German, ed., 2015); ELIZABETHGOITEIN,REDUCINGOVERCLASSIFICATION
THROUGHACCOUNTABILITY(2011); EMILY BERMAN,EXECUTIVEPRIVILEGE:A
LEGISLATIVEREMEDY (2009).

The Brennan Center has also filed recent amicus

briefs in litigation addressing these issues, including Dhiab v. Obama, 787 F.3d
563 (D.C. Ciro 2015) (arguing that the U.S. government

should not be permitted to

l The Brennan Center's views as amicus curiae in this case do not and will not purport to
represent the position of NYU School of Law.

classify information simply because it could be used to stir anti-American


sentiment abroad or embarrass the U.S.), and Ctr. for Constitutional Rights v. Cent.
Intelligence Agency, 135 S.Ct. 1530 (2015) (supporting cert., describing the
epidemic of overclassification in government agencies and the resulting risk to
FOlA itself).
7.

The NYCLU and the Brennan Center for Justice seek to participate as

amici curiae in this case because of concern that importing Glomar into FOIL
would undercut the effectiveness of FOIL as a tool for government transparency
and accountability.
8.

The proposed brief of amici curiae is attached to this affirmation as

Exhibit A. This brief supplements the Petitioner's brief by elaborating on two


issues that may otherwise escape the Court's consideration. First, the brief argues
that, absent an overriding need for a new level of secrecy, the Legislature, not the
judiciary, is presumptively the appropriate entity to decide whether to engraft a
Glomar response onto FOIL's carefully calibrated statutory scheme of openness.
Second, the brief argues that the NYPD's blanket Glomar response must be
scrutinized carefully and that the lower court's acceptance of the blanket Glomar
response must be vacated and re-evaluated on remand. Specifically, a more careful
examination would require the lower court to analyze whether the NYPD justified
its need for secrecy regardless of the official acknowledgement that the NYPD
5

kept surveillance records on the City's mosques, regardless of the extent of public
knowledge about the NYPD' s widespread surveillance of Muslim communities,
and regardless of the time limitations specified in the requests.
9.

As required by Rule 600.2(a)(3), attached as Exhibit B is the notice of

appeal in this matter and attached as Exhibit C is the order sought to be reviewed.
10.

For these reasons, the NYCLU and the Brennan Center for Justice

respectfully seek the Court's permission to file the attached amici curiae brief.

Dated:

July 30,2014
New York, New York

Marika Hirose
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
(212) 607-3300
mhirose@nyclu.org

EXHIBIT A

SUPREME COURT INDEX NO. 101559/2013

New York Supreme Court


Appellate Division First Department
_________________________________
TALIB W. ADBUR-RASHID,
Petitioner-Appellant,
-againstNEW YORK CITY POLICE DEPARTMENT, and RAYMOND KELLY,
in his official capacity as commissioner of the New York City Police Department,
Respondents-Respondents.

BRIEF OF AMICI CURIAE THE NEW YORK CIVIL LIBERTIES UNION


AND THE BRENNAN CENTER FOR JUSTICE IN SUPPORT OF
PETITIONER-APPELLANT
Michael Price
Brennan Center for Justice
at NYU School of Law
161 Avenue of the Americas,
12th Floor
New York, NY 10013
Tel: (646) 292-8335
Fax: (212) 463-7308
michael.price@nyu.edu

Mariko Hirose
Jordan Wells
Christopher Dunn
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
mhirose@nyclu.org

Dated: July 30, 2015

Printed on Recycled Paper

TABLE OF CONTENTS

PRELIMINARY STATEMENT ...............................................................................1


STATEMENTS OF INTEREST OF AMICI CURIAE ..............................................3
ARGUMENT .............................................................................................................6
I.

THE COURT SHOULD NOT IMPORT THE FEDERAL GLOMAR


DOCTRINE INTO THE FREEDOM OF INFORMATION LAW BASED
SOLELY ON FEDERAL PRECEDENT OR ON THE EVER-PRESENT
RISK OF TERRORISM. .................................................................................6

II. THE COURT SHOULD NOT ACCEPT THE BLANKET GLOMAR


INVOCATION IN THIS CASE. ...................................................................12
CONCLUSION ........................................................................................................20

TABLE OF AUTHORITIES
CASES
Am. Civil Liberties Union v. Cent. Intelligence Agency,
710 F.3d 422 (D.C. Cir. 2013)................................................................passim
Am. Civil Liberties Union v. U.S. Dept of Def.,
752 F. Supp. 2d 361 (S.D.N.Y. 2010) ............................................................. 4
Am. Civil Liberties Union v. U.S. Dep't of Def.,
389 F. Supp. 2d 547 (S.D.N.Y. 2005) ............................................................. 8
Am. Civil Liberties Union v. Fed. Bureau of Investigation,
59 F. Supp. 3d 584 (S.D.N.Y. 2014) ............................................................... 4
Am. Civil Liberties Union v. Fed. Bureau of Investigation,
2013 WL 3346845 (N.D. Cal. 2013) ............................................................. 17
Am. Civil Liberties Union of N. Cal. v. U.S. Dept of Justice,
2014 WL 4954277 (N.D. Cal. Sept. 30, 2014) ........................................16, 17
Asian Am. Legal Def. & Educ. Fund v. City of N.Y. Police Dep't,
41 Misc. 3d 471 (Sup. Ct., New York County 2013) .................................... 19
Ctr. for Constitutional Rights v. Cent. Intelligence Agency,
135 S.Ct. 1530 (2015)...................................................................................... 6
Council of Regulated Adult Liquor Licensees v. City of N.Y. Police Dep't,
300 A.D.2d 17 (1st Dept 2002) .................................................................... 19
DeFabritis v. McMahon,
301 A.D.2d 892 (3d Dept 2003)..................................................................... 7
Dept of Air Force v. Rose,
425 U.S. 352 (1976)......................................................................................... 9
Dhiab v. Obama,
787 F.3d 563 (D.C. Cir. 2015)......................................................................... 6
ii

Dunlea v. Goldmark,
54 A.D.2d 446 (3d Dept 1976)....................................................................... 9
Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State Univ. of
N.Y. at Farmingdale, 87 N.Y.2d 410 (1995) ................................................... 9
Gould v. City of N.Y. Police Dept,
89 N.Y.2d 267 (1996) ................................................................................ 7, 13
Grabell v. City of N.Y. Police Dept,
996 N.Y.S.2d 893 (Sup. Ct., N.Y. County 2014) ....................................11, 16
Gray v. Faculty-Student Assn of Hudson Valley Cmty. Coll., Inc.,
717 N.Y.S.2d 507 (Sup. Ct., Rensselaer County 2000) ................................ 16
Handschu v. Special Serv. Div.,
No. 71 Civ. 2203 (S.D.N.Y.) ........................................................................... 3
Hashmi v. City of N.Y. Police Dep't,
46 Misc. 3d 712 (Sup. Ct., New York County 2014) .............................passim
Laborers Intl Union of N. Am., Local Union No. 17 v. New York State
Dept of Transp., 280 A.D.2d 66 (3d Dept 2001) ........................................ 16
Lame v. U.S. Dept of Justice,
654 F.2d 917 (3d Cir. 1981) .......................................................................... 19
Lesher v. Hynes,
19 N.Y.3d 57 (2012) ...................................................................................... 19
McNamera v. U.S. Dept of Justice,
974 F. Supp. 946 (W.D. Tex. 1997) .............................................................. 10
N. Jersey Media Grp. v. Bergen Cty. Prosecutors Office,
2013 WL 6122922 (Super. Court, New Jersey Nov. 15, 2013) .................... 10
N.Y. Times v. U.S. Dept of Justice,
756 F.3d 100 (2d Cir. 2014) ............................................................................ 4

iii

N.Y. Civil Liberties Union v. City of Saratoga Springs,


87 A.D.3d 336 (3d Dept 2011)....................................................................... 3
N.Y. Civil Liberties Union v. City of Schenectady,
2 N.Y.3d 657 (2004) ........................................................................................ 3
N.Y. Civil Liberties Union v. Erie Cty. Sheriffs Office,
47 Misc. 3d 1201(A) (Supreme Court, Erie County Mar. 17, 2015) .............. 4
N.Y. Civil Liberties Union v. City of N.Y. Police Dep't,
20 Misc.3d 1108(A) (Supreme Court, New York County May 7, 2008) ....... 4
N.Y. Civil Liberties Union v. City of N.Y. Police Dep't,
74 A.D.3d 632 (1st Dept 2010) .................................................................. 3, 4
Raza v. City of New York,
No. 13 Civ. 3448 (E.D.N.Y.) ........................................................................... 3
Schulze v. Fed. Bureau of Investigation,
2010 WL 2902518 (E.D. Cal. July 22, 2010).................................................. 8
Wolf v. Cent. Intelligence Agency,
473 F.3d 370 (D.C. Cir. 2007)....................................................................... 14
STATUTES
N.Y. Pub. Off. Law 84 ............................................................................................ 9
N.Y. Pub. Off. Law 87 ...................................................................................... 7, 13
N.Y. Pub. Off. Law 89 ...................................................................................... 7, 11
N.Y. State Law 73 ................................................................................................... 6

iv

MISCELLANEOUS
APs Probe Into NYPD Intelligence Operations, Associated Press,
http://www.ap.org/Index/AP-In-The-News/NYPD....................................... 18
BRENNAN CENT. FOR JUSTICE, STRENGTHENING INTELLIGENCE
OVERSIGHT (Michael German, ed. 2015). ...................................................... 5
Chris Hawley & Eileen Sullivan, Hundreds of Muslims Rally in Protest
Against NYPD Spying, NBC New York, Nov. 18, 2011,
www.nbcnewyork.com/news/local/Muslim-Rally-NYPD-SpyCase-Police-Surveillance-Terror-Investigation-134108378.html ................. 18
ELIZABETH GOITEIN, BRENNAN CENT. FOR JUSTICE, REDUCING
OVERCLASSIFICATION THROUGH ACCOUNTABILITY (2011). ............................ 5
EMILY BERMAN, BRENNAN CENT. FOR JUSTICE, EXECUTIVE PRIVILEGE: A
LEGISLATIVE REMEDY (2009). ......................................................................... 5
Handschu v. Special Services Div., No. 71 Civ. 2203,
Thomas Galati Dep., June 28, 2012, available at
http://www.nyclu.org/files/releases/Galati_EBT_6.28.12.pdf. ..................... 14
Intelligence Division Report, Deputy Commissioners Briefing,
Apr. 25, 2008, http://hosted.ap.org/specials/interactives/documents/
nypd/dci-briefing-04252008.pdf.................................................................... 18
Letter from Jonathan David, NYPD Records Access Appeals Officer,
to Mariko Hirose, Nov. 5, 2014 available at
http://www.nyclu.org/files/20141105_NYPD_ALPR_
FOILResponseAppeal.pdf ............................................................................. 11
Mapping Muslims: NYPD Spying and Its Impact on American
Muslims, CUNY Creating Law Enforcement Accountability and
Responsibility Project, available at
http://www.law.cuny.edu/academics/clinics/immigration/
clear/Mapping-Muslims.pdf .......................................................................... 17

New York City Profiling Collaborative et al., In Our Own Words:


Narratives of South Asian New Yorkers Affected by Racial and
Religious Profiling (Mar. 2012), available at
http://saalt.electricembers.net/wp-content/uploads/2012/09/
In-Our-Own-Words-Narratives-of-South-Asian-New-YorkersAffected-by-Racial-and-Religious-Profiling.pdf........................................... 17
Press Release, NYPD, Remarks of Police Commissioner
Raymond W. Kelly Before ABNY & Council on Foreign Relations
Breakfast, Monday, Sept. 9, 2013,
http://www.nyc.gov/html/nypd/html/pr/pr_2013_09_09_pc_
remarks_before_assn_for_better_ny_council_
foreign_relations.shtml. ................................................................................. 14

vi

PRELIMINARY STATEMENT
This appeal is from one of two cases decided recently by lower courts in this
Courts jurisdiction that raise the question whether the Freedom of Information
Law permits state and local agencies to invoke Glomara doctrine that has
permitted federal agencies, in narrow circumstances often related to national
security, to circumvent requests under the federal Freedom of Information Act by
neither confirming nor denying that responsive records exist. Both cases arose out
of similar FOIL requests filed by Muslim community members seeking records
relating to the NYPDs investigation or surveillance of them and their activities. In
one caseHashmi v. City of N.Y. Police Dept, 46 Misc. 3d 712 (Sup. Ct., New
York County 2014), leave to file appeal grantedthe lower court rejected the
NYPDs contention that the Glomar doctrine is necessary to protect law
enforcement interests. By contrast, in this case the lower court permitted the same
Glomar response for the first time in the history of New York FOIL.
Amici curiae the New York Civil Liberties Union and the Brennan Center
for Justice submit this brief because incorporating into state law a Glomar doctrine
as sweeping as the one claimed by the NYPD in these cases would have a
significant negative impact on FOILs promise of government transparency and
accountability for New York. This brief supplements the Petitioners brief by
elaborating on two issues that this Court must consider on appeal.
1

First, the brief argues that the Legislature, not the judiciary, is presumptively
the appropriate entity to decide whether to engraft a Glomar response onto FOILs
carefully calibrated statutory scheme of openness. Neither the fact that the Glomar
doctrine exists under federal law nor the ever-present possibility of terrorism
adequately justify deviating from this scheme and judicially creating the Glomar
doctrine under state law.
Second, the brief argues that the NYPDs blanket Glomar response must be
scrutinized carefully. In this case, this Court does not need to decide the weighty
question of whether a Glomar response is ever appropriate under state law because
it should instead vacate the lower courts acceptance of the NYPDs sweeping
claim for secrecy. On remand, the lower court should be required to examine
whether the NYPD justified its asserted need for secrecy regardless of the official
acknowledgement that it kept surveillance records on the Citys mosques,
regardless of the extent of public knowledge about its widespread surveillance of
Muslim communities, and regardless of the time limitations specified in the
requests.
The lower court both failed to adequately consider the detrimental impact
that Glomar would have on FOIL and failed to carefully evaluate the NYPDs
claim to secrecy. The Court should vacate and remand for the lower court to
conduct a more searching analysis of the NYPDs sweeping Glomar invocation.
2

STATEMENTS OF INTEREST OF AMICI CURIAE


Amicus curiae the New York Civil Liberties Union, the New York State
affiliate of the American Civil Liberties Union, is a non-profit, non-partisan
organization with tens of thousands of members. The NYCLU is committed to the
defense and protection of civil rights and civil liberties, including the right to be
free of unwarranted government surveillance and unjustified police actions.
Attorneys from the NYCLU are litigating Raza v. City of New York, No. 13 Civ.
3448 (E.D.N.Y.), the constitutional challenge to the NYPDs suspicionless
surveillance of mosques and Muslim communities, and Handschu v. Special
Services Division, No. 71 Civ. 2203 (S.D.N.Y.), the constitutional challenge to the
NYPDs surveillance of communities based on political affiliations.
The NYCLU seeks to participate as amicus curiae in this case because FOIL
is an important tool for advancing the NYCLUs work, especially to promote
public understanding of and dialogue on police practices. The NYCLU has
litigated a number of cases to compel government agencies to comply with their
obligations to produce records under FOIL. See, e.g., N.Y. Civil Liberties Union v.
City of Schenectady, 2 N.Y.3d 657 (2004) (reversing lower court denial of incident
reports pertaining to use of force); N.Y. Civil Liberties Union v. City of Saratoga
Springs, 87 A.D.3d 336 (3d Dept 2011) (granting fees in case seeking records on
the police departments use of tasers); N.Y. Civil Liberties Union v. City of N.Y.
3

Police Dep't, 74 A.D.3d 632 (1st Dept 2010) (granting request for records
identifying the race of persons shot at but not hit by NYPD officers); N.Y. Civil
Liberties Union v. Erie Cty. Sheriffs Office, 47 Misc. 3d 1201(A) (Supreme Court,
Erie County Mar. 17, 2015) (granting request for records related to stingrays
surveillance equipment); N.Y. Civil Liberties Union v. City of N.Y. Police Dep't, 20
Misc.3d 1108(A) (Supreme Court, New York County May 7, 2008) (granting
request for stop-and-frisk database).
In this case, the NYCLU is particularly concerned that importing Glomar
into FOIL would undercut the effectiveness of FOIL as a tool for government
transparency and accountability. Attorneys from the NYCLU and the ACLU have
mounted a number of challenges to Glomar responses in the FOIA context. See,
e.g., N.Y. Times v. U.S. Dept of Justice, 756 F.3d 100 (2d Cir. 2014) (ACLU and
the New York Times seeking records related to lawfulness of targeted killings);
Am. Civil Liberties Union v. Cent. Intelligence Agency, 710 F.3d 422 (D.C. Cir.
2013) (ACLU seeking records relating to drone strikes); Am. Civil Liberties Union
v. Fed. Bureau of Investigation, 59 F. Supp. 3d 584 (S.D.N.Y. 2014) (ACLU and
NYCLU lawyers seeking records relating to governments bulk collection of
information other than telephony metadata); Am. Civil Liberties Union v. U.S.
Dept of Def., 752 F. Supp. 2d 361 (S.D.N.Y. 2010) (ACLU and NYCLU lawyers
seeking records relating to detention of prisoners in Afghanistan). As such, the
4

NYCLU understands well how the Glomar doctrine has undermined FOIA and
how it would likely have a similar effect on FOIL by encouraging government
secrecy and cutting off public debate.
Amicus curiae the Brennan Center for Justice at NYU School of Law is a
non-partisan public policy and law institute focused on fundamental issues of
democracy and justice, including the intersection of national security and civil
liberties as well as the importance of government transparency and accountability.1
The Centers Liberty and National Security (LNS) Program uses innovative policy
recommendations, litigation, and public advocacy to advance effective national
security policies that respect the rule of law and constitutional values. Reining in
excessive government secrecy is one of the LNS Programs main areas of focus,
and the Brennan Center has issued several reports on the need to increase the
transparency of national security policies and activities. See, e.g., BRENNAN
CENTER FOR JUSTICE, STRENGTHENING INTELLIGENCE OVERSIGHT (Michael
German, ed., 2015); ELIZABETH GOITEIN, REDUCING OVERCLASSIFICATION
THROUGH ACCOUNTABILITY (2011); EMILY BERMAN, EXECUTIVE PRIVILEGE: A
LEGISLATIVE REMEDY (2009). The Brennan Center has also filed recent amicus
briefs in litigation addressing these issues, including Dhiab v. Obama, 787 F.3d
563 (D.C. Cir. 2015) (arguing that the U.S. government should not be permitted to
1

The Brennan Centers views as amicus curiae in this case do not and will not purport to
represent the position of NYU School of Law.

classify information simply because it could be used to stir anti-American


sentiment abroad or embarrass the U.S.), and Center for Constitutional Rights v.
Central Intelligence Agency, 135 S. Ct. 1530 (2015) (supporting certiorari,
describing the epidemic of overclassification in government agencies and the
resulting risk to FOIA itself).
ARGUMENT
I.

THE COURT SHOULD NOT IMPORT THE FEDERAL GLOMAR


DOCTRINE INTO THE FREEDOM OF INFORMATION LAW
BASED SOLELY ON FEDERAL PRECEDENT OR ON THE EVERPRESENT RISK OF TERRORISM.
The lower court erred in importing the Glomar doctrine into FOIL from

federal law (Decision and Judgment, Sept. 11, 2014, R. 16), without recognizing
as the Hashmi court did in a case raising nearly identical issues, 46 Misc. 3d at
722-23that the Legislature is presumptively the more appropriate entity for
taking a step that would have such a significant impact on how FOIL operates.
Because the Glomar doctrine would modify FOILs carefully calibrated legislative
scheme in a manner that could substantially undermine FOILs effectiveness as a
tool for transparency and accountability, courts should not create state-law Glomar
unless the record establishes an overriding need for a new level of secrecy. See
N.Y. State Law 73 (The courts in construing statutes should avoid judicial
legislation; they do not sit in review of the discretion of the Legislature or

determine the expediency, wisdom, or propriety of its action on matters within its
powers.).
In this case, the lower court gave no weight to the fact that importing the
Glomar doctrine would significantly alter FOILs carefully calibrated legislative
scheme. For nearly forty years, FOIL exemptions have been interpreted,
consistently with the plain language of the law, to permit agencies to withhold
records or portions thereof, N.Y. Pub. Off. Law 87(2)not the mere
information about whether records exist. Moreover, FOIL does not permit
agencies to remain silent about the non-existence of records and instead requires
them, at the request of the FOIL filer, to certify that the requested records do not
exist or cannot be found after a diligent search. See N.Y. Pub. Off. Law 89(3)(a);
see, e.g., DeFabritis v. McMahon, 301 A.D.2d 892, 894 (3d Dept 2003) (requiring
certification that no responsive records exist other than records that were already
identified). This comprehensive statutory regime on its face leaves no room for
refusing to identify whether records exist or not.
The lower court also failed to recognize that the acceptance of the Glomar
doctrine in FOIL would not only deviate from this statutory regime but would
move away from the statutory purpose of openness. See Gould v. City of N.Y.
Police Dep't, 89 N.Y.2d 267, 274 (1996) (explaining that FOIL promote[s] open
government and public accountability). Glomar is the functional equivalent of a
7

non-response and represents the most extreme departure from the policy purpose . .
. to inform and promote transparency in governmental affairs. Schulze v. Fed.
Bureau of Investigation, No. 05 Civ. 0180, 2010 WL 2902518, at *20 (E.D. Cal.
July 22, 2010). The recognition of the Glomar doctrine under federal law has had
a significantly negative impact on FOIA, leading to excessive secrecy, lack of
court oversight, and unjustified obstacles for requestors. (See, e.g., Brief of Amici
Curiae The Reporters Committee for Freedom of the Press, July 22, 2015, at 1121.) As one federal court in New York acknowledged, [T]he danger of Glomar
responses is that they encourage an unfortunate tendency of government officials
to over-classify information, frequently keeping secret that which the public
already knows, or that which is more embarrassing than revelatory of intelligence
sources or methods. Am. Civil Liberties Union v. U.S. Dept of Def., 389 F. Supp.
2d 547, 561 (S.D.N.Y. 2005). Recognition of a Glomar response under FOIL
would likely have a similar effect of encouraging state and local agencies,
including small-town police departments and municipal agencies, to claim secrecy
where none is warranted.
Although the lower court transplanted Glomar into FOIL from federal case
law (Decision and Judgment, R. 16), the existence of Glomar under FOIA itself is
not an adequate reason to undermine FOILs legislative scheme. See Hashmi, 46
Misc.3d at 723. FOIL should not necessarily be interpreted the same as FOIA.
8

The textual distinctions between FOIL and FOIA previously have led the New
York Court of Appeals to interpret FOILs disclosure obligations more broadly
than those of FOIA. See Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State
Univ. of N.Y. at Farmingdale, 87 N.Y.2d 410, 416-18 (1995) (holding that federal
courts interpretation of agency records under FOIA should not limit the
textually distinct definition of records under FOIL). In addition, in FOIL,
unlike in FOIA, the Legislature has codified its fundamental finding . . . that the
public should have unimpaired access to records. Dunlea v. Goldmark, 54
A.D.2d 446, 449 (3d Dept 1976), affd, 43 N.Y.2d 754 (1977); see N.Y. Pub. Off.
Law 84.2
Here, even if the Glomar doctrine may be necessary for the federal
governments national security apparatus, there is little evidence that a similar
level of secrecy is necessary for the state and local agencies covered by FOIL that
the Legislature has determined should be responsive and accountable to its
residents. See Hashmi, 46 Misc. 3d at 723. The NYPD is not the Central
Intelligence Agency or the National Security Agency or the Department of
Defensethe most traditional beneficiaries of the Glomar doctrine under federal
law. See id. at 723-24 (finding that Glomar is most often tethered to exemptions

Although federal courts have also recognized FOIAs statutory purpose to be the promotion of
government transparency, see, e.g., Dept of Air Force v. Rose, 425 U.S. 352, 372 (1976), that
purpose is not codified by legislative findings like in FOIL.

that work in conjunction with the federal government's national security


apparatus); McNamera v. U.S. Dept of Justice, 974 F. Supp. 946, 953-54 (W.D.
Tex. 1997) (noting that agencies other than the CIA have not fared well in their
Glomar invocations). The NYPD, like other local law enforcement agencies
across the State, has been able to protect sensitive information very well within
the existing procedures that FOIL currently providesthat is, by identifying
responsive records and claiming secrecy over the content of the records rather than
their existence. Hashmi, 46 Misc. 3d at 724. That no other state court has adopted
the Glomar doctrine into state public records laws is further evidence that state and
local agencies may not have a need for such a heightened level of secrecy.3
Although the NYPD dedicated pages of its briefing and affidavit to its need
for exceptional secrecy to address terrorist threats as a general matter (Affidavit of
Thomas Galati, Feb. 11, 2014, 10-18, R. 92-100 (listing terrorist attacks and
counterterrorism investigations in New York City); Resps. Mem. of Law in
Support of Mot. to Dismiss at 29, R. 143 (arguing that the broad Glomar
invocation is necessary to prevent terrorist attacks, and that the court should defer
to this determination)), the ever-present risk of terrorism by itself is also
insufficient to support judicial revision of FOILs scheme of openness. The NYPD
3

A search of the term Glomar in Westlaws all-state case database does not yield any case in
which state courts have decided the question of incorporating the Glomar doctrine into their state
law, other than this case and Hashmi. The issue was raised, but not decided explicitly, in N.
Jersey Media Grp. v. Bergen Cty. Prosecutors Office, No. BERL674113, 2013 WL 6122922
(Super. Court, New Jersey Nov. 15, 2013).

10

has recently invoked the risk of terrorism in a range of contexts to seek exemptions
from FOIL and to argue for agency deference. See, e.g., Grabell v. City of N.Y.
Police Dep't, 996 N.Y.S.2d 893, 902 (Sup. Ct., N.Y. County 2014) (rejecting the
NYPDs claim that requested records relating to its past use of x-ray vans must be
kept secret because of terrorism concerns); see also Letter from Jonathan David,
NYPD Records Access Appeals Officer, to Mariko Hirose, Nov. 5, 2014 at 2-3
(denying records relating to the number and use of automatic license plate readers
on the basis that it would reveal elements of the inner workings and of the
operational details of a counterterrorism system used to deter and detect terrorist
activity), available at http://www.nyclu.org/files/20141105_NYPD_ALPR_
FOILResponseAppeal.pdf. But the threat of terrorism has always existed and will
always exist. If September 11, 2001, changed the NYPDs need for secrecy under
FOIL, the NYPD should take those arguments to the Legislature.
Over the years, the Legislature has comprehensively regulated access to
records in New York, revising FOIL when necessary. See N.Y. Pub. Off. Law
89 (amended in 2011, 2008, 2006, 2005, 2004, 2003, 1999, 1998, 1989, 1984,
1983, 1982, and 1981). In the absence of an overriding need other than the
existence of Glomar under FOIA and the general risk of terrorism, the Legislature,

11

not the judiciary, is presumptively the appropriate entity for taking the momentous
step of engrafting the Glomar doctrine into state law.
II.

THE COURT SHOULD NOT ACCEPT THE BLANKET GLOMAR


INVOCATION IN THIS CASE.
In this case, the Court need not reach the question posed above, because the

Court should vacate the lower courts acceptance of the NYPDs blanket Glomar
invocation and remand for a more searching inquiry. The lower court failed to
conduct a searching analysis of the NYPDs Glomar invocation with respect to the
fifteen separate categories of requests served on the NYPD by Imam AbdurRashid4and accepted instead the blanket claim that even confirming or denying

Specifically, the FOIL request sought the following: (1) All records related to any
investigation of [Petitioner] between 2006-2012, including the results of these investigations. (2)
All records related to [Petitioner] relied upon by the NYPD that led to any report being filed. (3)
All records related to the surveillance of [Petitioner] by NYPD. (4) All records related and relied
upon on the surveillance of [Petitioner] used by the NYPD. (5) All directives and/or memoranda
sent or received by the NYDP related to surveillance of [Petitioner] from 2006-2012. (6) All
records related to any investigation of [Petitioner] in relation to his activities within the African
American Community, between 2006-2012, including the results of these investigations. (7) All
records related to any investigation of [Petitioner] in relation to his civil rights activities, between
2006-2012, including the results of those investigations. (8) All records related to any
investigation of [Petitioner] in relation to his activities as Amir of the Harlem Shura, between
2006-2012, including the results of those investigations. (9) All records related to any
investigation of [Petitioner] in relation to his activities as Imam of the Mosque of Islamic
Brotherhood . . . between 2006-2012, including the results of those investigations. (10) All
records related to any investigation of the Mosque of Islamic Brotherhood . . . between 20062012, including the results of those investigations. (11) All records related to the Mosque of
Islamic Brotherhood . . . relied upon by the NYPD that led to any report being filed. (12) All
records related to the surveillance of the Mosque of Islamic Brotherhood . . . by NYPD. (13) All
records related and relied upon on the surveillance of the Mosque of Islamic Brotherhood . . .
used by the NYPD. (14) All records related to any investigation of the activities of the Mosque
of Islamic Brotherhood . . . between 2006-2012, including the results of those investigations.
(15) All directives and/or memoranda sent or received by the NYPD related to surveillance of

12

the existence of responsive records for any of the categories requested would
disclose information that is compiled for law enforcement purposes and which, if
disclosed, would . . . interfere with law enforcement investigations, reveal
criminal investigative techniques or procedures, except routine techniques and
procedures, and endanger the life and safety of numerous people. (Decision and
Judgment, R. 14 (citing N.Y. Pub. Off. Law 87(2)(e)(i),(2)(e)(iv),(2)(f)).)
This blanket claim of secrecy is inconsistent with FOIL and merits closer
scrutiny. See Gould, 89 N.Y.2d at 275 (rejecting blanket exemptions and
requiring a particularized and specific justification for withholding records
(internal quotation marks omitted)). First, for example, the lower court failed to
recognize that many of the requests seek records that the NYPD has already
officially acknowledged exist. (See Pet.s Mem. of Law in Opp. to Mot. to
Dismiss at 12-13, R. 166-67 (citing examples of both official acknowledgment and
public discussions of the NYPDs surveillance of Muslim communities).) Under
the Glomar jurisprudence that has developed under FOIA, a FOIA requestor can
overcome a Glomar response by showing official acknowledgmentor that the
agency has already disclosed the fact of the existence (or nonexistence) of
responsive records. Am. Civil Liberties Union v. Cent. Intelligence Agency, 710
F.3d 422, 427-30 (D.C. Cir. 2013); Wolf v. Cent. Intelligence Agency, 473 F.3d
the Mosque of Islamic Brotherhood . . . from 2006-2012. (FOIL Request, Oct. 23, 2012, R. 4142.)

13

370, 379 (D.C. Cir. 2007). This fact must have been made public through an
official and documented disclosure. Wolf, 473 F.3d at 378.
Several of the requests appear to fit within the confines of the official
acknowledgment exception to Glomar because top officials in the NYPD have
acknowledged that the NYPD conducted surveillance on mosques and their
congregants. The former NYPD Commissioner Raymond Kelly acknowledged, in
an address delivered while he was the Commissioner, that the NYPD compiled a
listing of the major mosques and their locations,5 and Assistant Chief Thomas
Galati testified in a deposition that the NYPD identified mosques throughout the
city and the ethnic community or communities that would go to the mosque.6
These statements in effect acknowledge that the NYPD has records about mosques
throughout New York City and that therefore there exist records responsive to
request 12, which seeks records related to the surveillance of the Mosque of
Islamic Brotherhood, as well as request 15, which seeks directives and/or
memoranda sent or received by the NYPD related to the surveillance of the
Mosque of Islamic Brotherhood. (R. 42.)

Press Release, NYPD, Remarks of Police Commissioner Raymond W. Kelly Before ABNY &
Council on Foreign Relations Breakfast, Monday, Sept. 9, 2013,
http://www.nyc.gov/html/nypd/html/pr/pr_2013_09_09_pc_remarks_before_assn_for_better_ny
_council_foreign_relations.shtml.
6
Handschu v. Special Services Div., No. 71 Civ. 2203, Thomas Galati Dep, 45:11-46:19, June
28, 2012, available at http://www.nyclu.org/files/releases/Galati_EBT_6.28.12.pdf.

14

In this respect this case is similar to American Civil Liberties Union v.


Central Intelligence Agency, where the D.C. circuit rejected a Glomar invocation
by the CIA in response to a request for records about drone strikes. The CIA
contended in that case that confirming the existence of responsive records would
reveal protected information about whether the agency at least has an intelligence
interest in drone strikes. 710 F.3d at 428-29 (internal quotation marks omitted).
The court held that although there had been no official acknowledgment
specifically of the existence of responsive records, the CIAs Glomar invocation
was neither logical nor plausible given that the President of the United States,
and then-Assistant for Homeland Security John Brennan, had officially
acknowledged that the United States has participated in drone strikes. Id. at 42830. As in that case, the NYPDs Glomar assertion that it needs to keep secret
whether it has an intelligence interest in the Mosque of Islamic Brotherhood
appears illogical and implausible given the NYPDs official acknowledgment that
it has conducted surveillance and kept records on mosques throughout the city and
their congregations. See supra, n. 5-6.
Second, the lower court failed to recognize that, even if the official
acknowledgment exception to Glomar does not apply, public knowledge of the
NYPDs surveillance of Muslim communities undermines the NYPDs blanket
claim to secrecy. See Hashmi, 46 Misc. 3d at 723 (suggesting that the official
15

acknowledgment doctrine would not bar the NYPDs Glomar invocation but citing
widespread public knowledge of the NYPDs surveillance program in deciding
against incorporating the Glomar doctrine). Outside of the Glomar case law,
courts have found that the governments rationale for seeking a FOIL or FOIA
exemption is undercut as a logical matter if the public already knows the
information that the government seeks to keep secret in asserting the exemption.
See Laborers Intl Union of N. Am., Local Union No. 17 v. New York State Dept
of Transp., 280 A.D.2d 66, 70 (3d Dept 2001) (holding that there was no legal or
logical basis to the argument that disclosure of a lease that has been awarded but
not approved could lead competitors to upset the contract process where
competitors were aware that construction activity had already begun on leased
land); Grabell, 996 N.Y.S.2d at 902 (denying law enforcement exemption over a
surveillance device in part because much information about [the surveillance
equipment] is already public); Gray v. Faculty-Student Assn of Hudson Valley
Cmty. Coll., Inc., 717 N.Y.S.2d 507, 510 (Sup. Ct., Rensselaer County 2000)
(denying exemption over information which is readily available to any member of
the public simply by walking into the bookstore); Am. Civil Liberties Union of N.
Cal. v. U.S. Dept of Justice, No. 12-CV-04008-MEJ, 2014 WL 4954277, at *1314 (N.D. Cal. Sept. 30, 2014) (rejecting the conclusory declaration that wrongdoers could evade detection as a result of disclosure of records relating to a
16

surveillance technology where there is much public information available), appeal


docketed, No. 14-17339 (9th Cir. Nov. 26, 2014); Am. Civil Liberties Union v. Fed.
Bureau of Investigation, No. 12-03728, 2013 WL 3346845, at *9 (N.D. Cal. 2013)
(rejecting FBI affidavit stating that records may reveal an investigative
technique, because it fails to delineate how, in this case, a technique unknown by
the public will be revealed). In these cases, it has not mattered whether the public
learned the information from the government itself, or from media reports, or from
visual observations. See supra; see especially Am. Civil Liberties Union of N. Cal.,
2014 WL 4954277, at *13 (stating that public knowledge undermining the law
enforcement exemption to FOIA is evidenced by a number of news articles and
judicial opinions addressing these techniques).
Here, the NYPDs claimed need for secrecy over the existence of responsive
records appears illogical as to many of the requests given that the public already
knows that the records exist. Aside from the official acknowledgement described
above, supra n. 5-6, there has been much public discussion about the NYPDs
mass, unjustified surveillance of Muslim New Yorkers.7 The Associated Press

Chris Hawley & Eileen Sullivan, Hundreds of Muslims Rally in Protest Against NYPD Spying,
NBC New York, Nov. 18, 2011, www.nbcnewyork.com/news/local/Muslim-Rally-NYPD-SpyCase-Police-Surveillance-Terror-Investigation-134108378.html; Mapping Muslims: NYPD
Spying and Its Impact on American Muslims, CUNY Creating Law Enforcement Accountability
and Responsibility Project, available at
http://www.law.cuny.edu/academics/clinics/immigration/clear/Mapping-Muslims.pdf; New York
City Profiling Collaborative et al., In Our Own Words: Narratives of South Asian New Yorkers
Affected by Racial and Religious Profiling (Mar. 2012), available at

17

released a series of articles about this NYPD surveillance program, including


NYPD documentation that relates to the surveillance of the Mosque of Islamic
Brotherhood.8 The NYPD acknowledged below that this document is its agency
document but did not explain why the document would not be responsive to
requests 11 and 13. (Resp.s Reply Mem. of Law at 6, n.2 (referring to the
document referencing the Mosque of Islamic Brotherhood as NYPD document),
R. 197.)
Finally, some of the requests seek records relating to investigations that
occurred between 2006 and 2012, raising the question whether the NYPD has
adequately stated its need for secrecy over the existence of records from the entire
time frame of the request. The NYPD asserted that secrecy that is unlimited in
time is appropriate because even an investigation that has been closed or
discontinued some time ago may become significant at a later date (Galati Aff.
46, R. 108). This assertion, however, conflicts with case law holding that, absent
some unusual circumstance, the FOIL exemption that protects against interference
with law enforcement investigations ceases to apply after enforcement

http://saalt.electricembers.net/wp-content/uploads/2012/09/In-Our-Own-Words-Narratives-ofSouth-Asian-New-Yorkers-Affected-by-Racial-and-Religious-Profiling.pdf.
8
APs Probe Into NYPD Intelligence Operations, Associated Press,
http://www.ap.org/Index/AP-In-The-News/NYPD; Intelligence Division Report, Deputy
Commissioners Briefing, Apr. 25, 2008,
http://hosted.ap.org/specials/interactives/documents/nypd/dci-briefing-04252008.pdf (NYPD
was especially concerned with and keying on our convert mosques i.e. Ikhwa, Taqwa,
Iqquamatideen and MIB (Mosque of Islamic Brotherhood)).

18

investigations and any ensuing judicial proceedings have run their course. Lesher
v. Hynes, 19 N.Y.3d 57, 68 (2012); see, e.g., Council of Regulated Adult Liquor
Licensees v. City of N.Y. Police Dep't, 300 A.D.2d 17, 18 (1st Dept 2002)
(ordering disclosure, with certain redactions for prospective police activity, of law
enforcement records that are over two years old and [are] for the most part not
relevant to any current or future investigation or prosecution . . ., other than to
provide historical context). The lower court failed to acknowledge or examine
how the NYPDs broad assertion squares with this precedent and whether unusual
circumstances continue to bar even the disclosure of the mere fact that records
exist, even about the existence of records from now almost ten years ago.9
The lower court decision cannot be sustained because it accepted a blanket
invocation of Glomar without closely evaluating whether the NYPD met its burden
of justifying such broad secrecy. Glomar is an exceptional doctrine even under
federal law. See Lame v. U.S. Dept of Justice, 654 F.2d 917, 922 (3d Cir. 1981)
(describing a Glomar response as a special circumstance); Cent. Intelligence
Agency, 710 F.3d at 426 (describing Glomar doctrine as available in limited
circumstances). It should not be incorporated into state law in the sweeping
9

In Asian Am. Legal Def. & Educ. Fund v. City of N.Y. Police Dep't, 41 Misc. 3d 471, 477 (Sup.
Ct., New York County 2013), affd, 125 A.D.3d 351 (1st Dept 2015), the court accepted the
NYPDs argument that the possibility of continuing terrorism investigations justified the nondisclosure of certain records relating to the surveillance of the Muslim community. The dispute
here, however, is over more limited informationmerely the existence of responsive records
rather than the disclosure of the records themselves.

19

manner that it was in this case, and on remand the lower court should be required
to evaluate the need for secrecy more carefully.
CONCLUSION
For the reasons described above, the COU1ishould vacate the decision below
that adopted the sweeping Glomar doctrine into FOIL and remand to the lower
court for further scrutiny of the NYPD' s claimed need for secrecy.
DATE:

July 30, 2015


Respectfully submitted,

Mariko Hirose
Jordan Wells
Christopher Dunn
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
mhirose@nyclu.org
Michael Price
Brennan Center for Justice
at NYU School of Law
161 Avenue of the Americas, 12th Floor
New York, NY 10013
Tel: (646) 292-8335
Fax: (212) 463-7308
michael. price@nyu.edu

20

SUPREME COURT INDEX NO. 101559/20l3

PRINTING SPECIFICATIONS STATEMENT


This computer-generated brief was prepared using a proportionately spaced
typeface.
Name of typeface: Times New Roman
Point size: 14
Line spacing: Double
The total number of words in the brief, inclusive of point headings and
footnotes and exclusive of pages containing the table of contents, table of
authorities and proof of service is 4,923.

~CM&

Jordan WeUs
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
jweUs@nyclu.org

Dated:

July 30, 2015


New York, New York

EXHIBITB

SUPREME COURT OF THE STATE OF NEW YORK'

=~~:_:_~:._~:::_~~~----------------------------x
...t ~~~

TALIB W. ADBUR~RASHID,

~.L

t.;

Petitioner,

......

-against-

559/2013
).

NEW YORK CITY POLICE DEPARTMENT,


and RA YMOND KELL Y, in his official capacity
as Commissioner of the New York City Police
Department,

e.

fjJ

NOTICE OF APPEAL

Respondents.
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules

~~~"~-~~~~~-~--~~~--~-'-~---~~-~--~----------- ----------~~~-X

PLEAS TAKE NOTICE that Petitioner, TALIB W. ABDUR RASHID, hereby appeals
to the Supreme Court of the State of N ew York, Appellate Division, First Department

from the

Decision and Judgment of the Supreme Court of the State of New York, County of New York
(Hunter, J.) dated September 11, 2014, entered in the office of the County Clerk of the County of
New York on September 25, 2014 in its entirety, and served in the Notice of Entry on September
30,2014.

Dated:

New York, New York


October 22,2014

By:
O)';'~,

Moiammedi

;f

'~w Firm
Omar T. Mohammedi,
233 Broadway, Suite 801
Woolworth Building
New York, NY 10279
(212) 725-3846

Counsel for Petitioner

TO:

Zachary W. Carter
Jeffery S. Dantowitz
Corporation Counsel of the City of New York
Attomey for Respondents
100 Church Street, Room 2-121
New York, New York 10007
(212) 356-0876

LLC

EXHIBIT C

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK

---------~------------------------------------------------------------x
TAUB

W. ABDUR-RASHID,
Petitioners,
-against-

NEW YORK CITY POLICE DEPARTMENT, and


RA YMOND KELL Y, in his official capacity as
Commissioner of the New York City Police Department,

Index No. 101559/2013


lAS Part 33
(Hunter, J.)

NOTICE OF ENTRY

Respondents.
For a Judgment Pursuant to Article 78 of the Civil Practice
Law and Rules

---------------------------------------------.-~-----------------------x
PEASE TAKE NOTICE, that a Decision and Judgment,

a true and complete

copy of which is annexed hereto, was entered in the office of the New York County Clerk on
September 25,2014.
Dated:

New York, New York


September 30,2014
ZACHARYW.

TO:

Omar T. Mohammedi, Esq.


Law Finn of Omar T. Mohammedi
Attomey for Petitioner
233 Broadway, Suite 801
New York, NY 1.0279
(212) 725-3846

LLC

CARTER

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SUPREME.COURT OF THE STATE OF NEW YORK


NEW YORK COUNTY
Index Number:

101559/2013

ABDUR-RASHID,

PART

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N,y,P.D,

MonON DATE

. Sequence Number: 001

MonON SEQ. NO.

ARTICLE 78
The following papers, numbered 1 to __
Notice of Motion/Order
Answering Affidavits
Replying Affidavits

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, were read on this motion tolfor

Exhibits _~

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papers, It i? ordered that this motion Is

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3. CHECK IF APPROPRIATE;

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ALEXANDER W..R

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NON-FINAL DISpo;TlON

DISPOSED'

D GRANTED
D DENIED
D GRANTED IN PART
O OTHER
D SETTLE ORDER
D SUBMIT ORDER
D DO NOT POST
D FIDUCIARY APPOINTMENT'
O REFERENCE

SUPREME COURT OF THE STATE OF NEW YOR1<


COUNTY OF NEW YORK: PART 33

-------------------------------------------------------------------)(
Talib W. Abdur-Rashid,

Petitioner,

Index No.:101559/2013

For a Judgment Pursuant to C.P.L.R. Article 78,


Decision and Judgment

-aganstNew York City Police Department, and Raymond Kelly,


In his official capacity as Commissioner of the New
York City Police Department,
Respondents .

-,..----.------------------- -_------.---- -------.-------- X


HON. ALEXANDER

W. ,HUNTER~ JR,
.

The application by petitioner for an order pursuant to CPLR Article 78, directing
respondents to provide petitioner with records responsive to petitioner's Freedom of Information
Law ("FOIL") request 12-PL-I06546 made pursuant to Public Officers Law ("POL") 84 et
seq. is denied. The cross motion by respondents to dismiss the petition is granted.
This case presents an important issue of apparent first impression - whether a local New
York State law enforcement agency responding to a FOIL request may refuse to confirm or deny
the existence of responsive records by adopting the Glornar doctrine which permits federal
agencies to neither confirm nor deny the existence of records requested pursuant to the federal
Freedom of Information Act ("FOlA"). Petitioner asserts that he and the Mosque' ofIslarnic
Brotherhood, where he serves
Imam, are subjects of ongoing or contemplated investigative
activity conducted by respondents. Accordingly, petitioner is requesting all records pertaining to
respondents' surveillance of petitioner and of the Mosque ofIslamie Brotherhood. In response to
petitioner's request, respondents assert that, in accordance with public safety and law enforcement
exemptions, it is not required to disclose which individuals or organizations are or have been the
subject of ongoing or contemplated investigative activity.

as

On October 23,2012, petitioner submitted a FOIL request to respondents' FOIL Unit for
all records relating to any possible surve11ance and/or investigation of petitioner and the Mosque
of Islamic Brotherhood. The FOIL Unit acknowledged petitioner's request by letter dated
November 13, 2012 and subsequently sent follow-up letters to petitioner dated December 12,
2012
February 13,2013 informing rum that additional time was required to make a
determination on the request. By letter dated June 28,2013, respondent informed petitioner that
his request was denied for facial insufficiency. According to the letter, petitioner not only failed
to submit a certification of identity of a requester as required under POL 87(2)(b) and 89(2),
but also failed to include written consent to disclose records to petitioner's attorney pursuant to
POL 89(2)(c)(ii). The June 28,2013 response went on to state that, regardless of the facial

ana

",

.' ..~

insufficiency of the request, the information sought by petitioner, if possessed by respondent,


was exempt fi-Dm FOIL disclosure pursuant
POL 87(2)(e)(i), 87(2)(e)(iii), 87(2)(e)(iv),
87(2)([), 87(2)(b) and 89(2)(b); 87(2)(g), and 87(2)(a).

to

On July 19, 2013, petitioner appealed respondents' determination by disputing the claim
of facial insufficiency and maintaining that the June 28, 2013 response constituted a blanket
denial which was not supported by facts or law. In a reply dated August 7, 20l3, respondents
denied petitioners appeal and again claimed that the request was facially insuffioient.
Respondents also referred to a failure by petitioner to reasonably describe the records sought in
the request, and cited to FOIL exemptions POL 87(2)(a), (b), (e), (f), (g) and 89(2)(b).
Petitioner was advised that he had four mouths to commence an Article 78 proceeding to review
respondents'determination.
On November 26,2013, petitioner filed the instant petition for relief
pursuant to CPLR Article 78. On April2, 2014, respondents filed a cross-motion to dismiss the
petition pursuant to CPLR 7804([). Oral argument was hejd on June 24,2014.
The purpose of FOIL, found in Article 6 of the Public Officers Law, is to shed light Oll
government decision-making, which in tum permits the electorate to make informed choices
regarding governmental. activities and facilitates exposure of'waste, negligence and abuse.
En'Q,reCollege Bookstoresv. Auxiliary Serv. Con:l. of State University of New York at
Farmingdale, 87 N.Y.2d 410, 416 (1995). Exemptions are narrowly construed and the agency
seeking to prevent disclosure bears the burden of demonstrating that the requested material falls
squarely within an exemption by articulating a particularized and specific justification for
denying access. Matter of Schenectady County Socy. for The Prevention of Cruelty To
Animals, Inc. v. Mills, 74 A.D.3d 1417,1418 (3rd Dept. 2010).
When analyzing and deciding issues pertaining to FOIL exemptions patterned after the
federal FOIA, New York courts may look to federal case law for guidance. Hawkins v.
Kurlander, 98 A.D.2d 14 (4th Dept. 1983) (citing Matter of Fink v. Lefkowitz; 47 N.Y.2d 567
[1979]). FOIL's "legislative history .. .indicates that many of its provisions ... were patterned after
the [f]ederal analogue. Accordingly, [fjederal case law and legislative hlstory ... are instructive"
when interpreting such provisions. Lesher v. Hynes, 19 N.Y.3d 57, 64 (2012). In Pittal' v.
Pirro, 258 A.D.2d 202 (2nd Dept. 1999), the Appellate Division, Second Department employed
the Supreme Court's analysis ofFOlA exemption 7(a) applied in N.L.R.B. v. Robbins Tire &
Rubber Co., 437 U.S. 214 (1978) when interpreting POL 87(2)(e)(i). Notwithstanding the
foregoing, federal case law should only be used as a guide when applicable. The Court of
Appeals in Encore College Bookstores, 87 N.Y.ld 41'0 (1995) rejected using the federal courts'
definition of "agency records" because federal case Jaw constructed the definition of i'agency
records" from two federal statutes, and therefore the FOlA definition of "agency records" is far
more restricted that the FOIL definition.
One significant difference between FOIL and FOlA is the ability to issue what is referred
to as a Glomar response. A Glomar response may be asserted when an agency responding to a
FOlA request refuses .to confirm or deny the existence of the requested records jf such
confirmation or denial would cause harm cognizable under a FOlA exemption. Wilnel'v.
National Sec. Agency, 592 F.3d 60 (2nd Cil'. 2009) (citing Gardels v. CIA, 689F.2d 1100
[D.C. Cil'. 1982]). The Glomar response takes its name from the Hughes Glornar Explorer, a

ship that was the subject of the FOrA request at issue in 'phillippi v. CIA, 546 F.2d 1009 (D.C.
Cir.1976).
In order to invoke a Glomar response an agency must "tether" its refusal to one of nine
FOrA exemptions. The burden is placed on the party resisting disclosure to demonstrate with
"reasonably specific" detail that the information being withheld logically falls within the claimed
exemption. Wilner, 592 F.3d at 73; Amnesty Internati9nal USA v. CIA, 728 F.Supp.2d 479
(S.D.N.Y.2010).
Agencies may invoke all exemption independently and courts may uphold
agency action under one exemption without considering the applicability of the others. Larson
v, DeRt. of State, 565 F.3d 857, 862 (D.C. Ciro 2009).
'
At issue in the, instant petition are FOIL exemptions for records that fall within the
following three categories: Ci)POL 87(2)(e)(i) records compiled for law enforcement
purposes, which if disclosed, would interfere with law enforcement investigations; (ii)POL
87(2)(e)(iv) records compiled for law enforcement purposes, which if disclosed, would reveal
criminal investigative techniques or procedures; and (iii) POL 87(2)(f) records, which if
disclosed, could endanger the life or safety of a person. FOlA contains similar exemptions;
found in 5 u.s.e. 552 (b) (7) ("exemption ?"),
'
.

Federal FOlA's exemption 7 applies to records or information compiled for law


enforcement purposes: National Day Laborer Organizing Network v. U.S. Immigration aud
Customs Enforcement Agency, 811 F,Supp.2d 713 (S.D.N.Y. 2011). "Courts have generally
interpreted exemption 7 as applying to records that pertain to specific investigations conducted
by agencies, whether intemal or external, and whether created or collected by the agency-in
other words, investigatory files." IQ. at 744. The government or agency bears tbe burden to
demonstrate that a record is "compiled for law enforcement purposes" and that disclosure would
effectuate one or more of the specified harms. John Doe Agency v. John Doe Corp., 493 U.S.
146 (1989), Exemption 7 subdivisions (d) (e) and (f) are relevant to the instant case.
..
Exemption 7( ct) protects records that could reasonably be expected to disclose the identity
of confidential sources, including a state, local or foreign agency or any private institution that
furnished information on a confidential basis and any records compiled by criminal law
enforcement authority in the course of a criminal investigation or by an agency conducting a
lawful national security intelligence investigation. 5 U.S.C. 552(l;J)(7)(d). Agencies properly
invoke exemption 7(d) if the source provided information under an express assurance of
confidentiality or in circumstances from which such an assurance could be reasonably inferred.
Halpern v, F.B.I., 181 F.3d 279 (2nd Ciro 1999) (citing U.S. Dept. of Justice v. Landano, 508
U.S. 165 [1993]).
Exemption 7(e) allows nondisclosure when such records would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions and could reasonably be expected to risk
circumvention of the law. 5 U.S.C. 552(b)(7)(e).
And lastly, exemption 7(f) prevents disclosure of records or information if such
disclosure could reasonably be expected to endanger the life or physical safety of any individual.
3

l' .-, ...,.'--~ ...

5 U.S.C. 552(b)(7)(f). Exemption 7() has been invoked to protect individuals involved in law
enforcement investigations and trials, as officials and as private citizens providing information
and giving testimony. American Civil Liberties Union v. Department of Defense, 389
F.Supp.2d 547 (S.D.N.Y. 2005).

When establishing a Glomar response, agencies submit affidavits that "describe the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith." Wilner, 592 F.3d at 73.
Conclusory affidavits that merely recite statutory standards> or are overly vague or sweeping will
not, standing alone, carry the agency's burden. Larson v. Department of State, 565 F.3d 857
(D,C. Ciro 2009). On the issue of national security, courts must accord substantial weight to an
agency's affidavit concerning the details of the classified status ofthe disputed record. Wolf v,,
CIA, 473 F.3d 370 (D.C. Ciro 2007) .. Although federal cases note that a court must ccord
"substantial weight" to the agency's affidavits, this cOUlionly looks to federal cases for guidance
in interpreting the requirement and is not required to give the same substantial weight to the
affidavits. See Davis v. United States Dep't of Homeland Sec., 2013 U.s. Dist.LEXIS 91386,
14,33 (E.D.N,Y. JUlle27, 2013).
.
Respondents have invoked a Glomar-like.response through the affidavit of Thomas
Galati, Chief of the Intelligence Bureau for the New York City Police Department ("NYPD"),
which tethers respondents' refusal to disclose the existence of responsive nicords to three FOIL
exemptions. Respondents meet their burden to issue a Glomar response, set by the federal
courts, by describing generic risks posed by disclosure, including undermining counter-terrorism
operations, compromising the intelligence capabilities of the NYPD, and disclosing sources of
the information of the NYPD. See Asian Am. ,Legal Def. & Edue. Fund v. New York City
Police D..p.t., 41 Mise.3d 471, 476 (N.Y. Sup. Ct. 2013).
Respondents have demonstrated that petitioner is requesting records which may contain
source revealing information that could potentially jeopardize the sources and methods used by
the NYPD Intelligence Bureau. Through Chief Galati's affidavit, respondents claim that
disclosing the existence of responsive records would reveal information concerning operations,
methodologies, and sources of information of the NYPD, the resulting harm of which would
allow individuals or groups to take counter-measures to avoid detection of illegal activity,
undermining current and future NYPD investigations.
.
Finally, respondents have established that even acknowledging whether or not responsive
records exist could impair the lives and safety of undercover officers and confidential
informants. "The agency in question need only demonstrate 'a possibility of endanger[ment]' in
order to invoke this exemption." Matter of Bellamy v, New York City Police Dept., 87
A.D,3d 874, 875 (1stDept .:2011). Accordingly, the response provided by respondents falls
under the public safety exemption.
Nonetheless, neither the New York Court of Appeals nor the appellate divisions have
ruled on the issue of whether a local agency, like the NYPD, has the ability to use the federally
accepted Glomar response to a FOIL request. Furthermore, the federal precedent is clear that
4

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FOlA applies only to federal and not state agencies. Reed v. Medford Fire Dept., 806
F.Supp.2d 594, 607 (E.D.N.Y. 2011) citing Grand Cent. Partnership, Inc. v. Cuomo, 166
F.3d 473 (2nd Gir. 1999). Respondents are correct that FOIL is pattemed after FOlA, but
federal and New York state case law demonstrate that FOlA is not intended for state agencies. It
should follow that when a local agency such as the NYPD is replying to a FOIL request, the
Glomar doctrine is similarly inapplicable.' Moreover, the Second Circuit "has explicitly stated
that it is beyond question that FOlA applies only to federal and not to state agencies." Reed v.
Medford Fire DeRt., 806 F.Supp.2d 594, 607 (E.D.N.Y. 2011) citing Gi'and Cent.
Partnersbip_JQc. v. Cuomo, 166 F.3d 473 (2nd Ciro 1999).
However, in a case of apparent first impression on these very narrow issues involving
three (3) FOIL exemptions applied to the unique facts and circumstances of this Article 78
proceeding, this court looks to the holdings of other jurisdictions for guidance since the current
issues have never been squarely decided and, thus, there is no precedent to follow. Respondents
have sufficiently demonstrated that applying the Glomar doctrine to petitioner's FOIL request is
in keeping with the spirit of similar appellate court cases. Indeed, an examination of prior court
rulings with parallels to the instant petition, combined with well-reasoned.legalargumentsput
forth by respondents, lead this court-to conclude that respondentadeoision
110tto reveal whether
documents.respnsive to petitioner's FOIL request xist shold not-be disturbed as it has a
rational basis in the law.
Accordingly, it is hereby,
ADJUDGED that petitioner's application for an order pursuant to C.P.L.R. Artide 78 is
denied, without costs and disbursements to either party. The cross motion by respondents to
dismiss the petition is granted.
Dated: September 11,2014

IndexNo: 101559/2013
SUPREME COURT OF THE STA TE OF NEW YORK
COUNTY or NEW YORK:
TAUB W~ ABDUR-RASHID,
Petitioners,
For a Judgment Pursuant to C.P.LR- Article 78,
-against-Y.-

TNEW YORK CITY POLICE DEPARTMENT, AND


RAYMOND KELL Y, IN HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE NEW YORK CITY POLICE
DEPARTMENT,

Redpondents
DECISiON

AND JUDGi\:!ENT

MICHAELA. CARDOZO
:

;
r

Corporation Counsel of the City of New York


Of Counsel: Jeffrey Dantowitz
Tel: (212788-0876

Due and timely service

is

hereby admitted.

New York, N.Y.

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Attorney for

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