Reproduced on Recycled Paper
APL-2016-00219 To be argued by:
DEVIN SLACK
30 minutes requested
Court of Appeals
State of New York
In the Matter of the Application of
TALIB W. ABDUR-RASHID,
Petitioner-Appellant,
against
NEW YORK CITY POLICE DEPARTMENT, et al.,
Respondents-Respondents,
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules.
(Additional Caption on Inside Cover)
BRIEF FOR RESPONDENTS
RICHARD DEARING
DEVIN SLACK
JOHN MOORE
of Counsel
May 8, 2017
ZACHARY W. CARTER
Corporation Counsel
of the City of New York
Attorney for Respondents
100 Church Street
New York, New York 10007
Tel: 212-356-0840 or -0817
Fax: 212-356-1148
jomoore@law.nyc.gov
SAMIR HASHMI,
Petitioner-Respondent,
against
NEW YORK CITY POLICE DEPARTMENT, et al.,
Respondents-Respondents,
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules.
TABLE OF CONTENTS
Page
i
TABLE OF AUTHORITIES ....................................................... iv
PRELIMINARY STATEMENT ................................................... 1
QUESTIONS PRESENTED ....................................................... 5
STATEMENT OF THE CASE .................................................... 5
A. The NYPD’s efforts to detect and prevent terrorism
in New York City .......................................................... 5
B. Petitioners’ requests for information about the
NYPD’s counterterrorism operations ........................... 8
C. The commencement of these proceedings and the
decisions below ............................................................ 10
ARGUMENT ............................................................................. 16
POINT I
FOIL DOES NOT REQUIRE AN AGENCY TO
REVEAL PROTECTED INFORMATION WHEN
DENYING A REQUEST FOR EXEMPT RECORDS ...... 17
A. Forcing agencies to reveal protected information
when denying requests would thwart the statutory
text and purpose. ........................................................ 20
B. FOIL requires agencies to fully explain the reasons
for denying requests, not to always specify whether
responsive records exist. ............................................. 26
C. Petitioners offer no reason to depart from the
uniform interpretation of FOIL’s federal
counterpart. ................................................................ 31
TABLE OF CONTENTS (cont’d)
Page
ii
D. Petitioners’ approach would render agencies
powerless to protect personal privacy and avoid
harms captured by other exemptions. ........................ 36
E. FOIL contains ample safeguards to protect against
misuse of a circumscribed response. .......................... 41
POINT II
THE NYPD PROPERLY PROVIDED A
CIRCUMSCRIBED RESPONSE TO PETITIONERS’
REQUESTS ...................................................................... 45
A. Petitioners concede that records responsive to their
requests, to the extent any exist, would be exempt
from disclosure. ........................................................... 46
B. On their face, petitioners’ requests seek information
protected by FOIL’s law enforcement and public
safety exemptions. ...................................................... 49
C. The NYPD properly used a circumscribed response
to petitioners’ requests specifically. ........................... 54
D. The NYPD’s ability to provide a circumscribed
response is not dependent on its ability to classify
documents. .................................................................. 58
E. The NYPD has never officially acknowledged the
specific records petitioners seek. ................................ 60
F. The NYPD provided a circumscribed response in
good faith. .................................................................... 63
CONCLUSION .......................................................................... 66
TABLE OF CONTENTS (cont’d)
Page
iii
CERTIFICATE OF COMPLIANCE .......................................... 67
TABLE OF AUTHORITIES
Page(s)
iv
Cases
Am. Civil Liberties Union of Michigan v. FBI,
734 F.3d 460 (6th Cir. 2013) ...................................................... 52
Matter of Asian American Legal Defense and Education
Fund v. N.Y.C. Police Department (AALDEF),
125 A.D.3d 531 (1st Dep’t 2015), lv. denied, 26
N.Y.3d 919 (2016) .............................................................. passim
Matter of Bellamy v. New York City Police Dep’t,
87 A.D.3d 874 (1st Dep’t 2011), aff’d, 20 N.Y.3d 1028
(2013) .......................................................................................... 51
Catledge v. Mueller,
323 F. App’x 464 (7th Cir. 2009) .......................................... 34, 52
Ely v. FBI,
781 F.2d 1487 (11th Cir. 1986) .................................................. 33
Encore Coll. Bookstores, Inc. v. Auxiliary Serv. Corp. of
State Univ. of N.Y.,
87 N.Y.2d 410 (1995) ................................................................. 31
Fink v. Lefkowitz,
47 N.Y.2d 567 (1979) ......................................................... passim
Frugone v. CIA,
169 F.3d 772 (D.C. Cir. 1999) .................................................... 62
Gelbard v. Genesee Hosp.,
87 N.Y.2d 691 (1996) ................................................................. 25
Hanig v. State Dep’t of Motor Vehicles,
79 N.Y.2d 106 (1992) ............................................... 17, 20, 36, 37
TABLE OF AUTHORITIES (cont’d)
Page(s)
v
Hunt v. CIA,
981 F.2d 1116 (9th Cir. 1992) .............................................. 33, 55
Lesher v. Hynes,
19 N.Y.3d 57 (2012) ................................................. 32, 33, 50, 55
Matter of Markowitz v. Serio,
11 N.Y.3d 43 (2008) ............................................................. 17, 42
Moore v. CIA,
666 F.3d 1330 (D.C. Cir. 2011) .................................................. 60
North Jersey Media Grp., Inc. v. Bergen Cnty.
Prosecutor’s Office,
146 A.3d 656 (N.J. Super. Ct. App. Div. 2016) ................... 40, 41
Phillippi v. CIA,
546 F.2d 1009 (D.C. Cir. 1976) ................................ 18, 33, 34, 43
Platsky v. NSA,
547 F. App’x 81 (2d Cir. 2013) ................................................... 34
Prisoners’ Legal Servs. v. N.Y.S. Dep’t of Corr. Servs.,
73 N.Y.2d 26 (1988) ................................................................... 21
Rattley v. NYPD,
96 N.Y.2d 873 (2001) ................................................................. 29
Scott, Sardano & Pomeranz v. Records Access Officer,
65 N.Y.2d 294 (1985) ................................................................. 39
Shelton v. Am. Motors Corp.,
805 F.2d 1323 (8th Cir. 1986) .................................................... 23
United States v. Hubbell,
530 U.S. 27 (2000) ...................................................................... 23
TABLE OF AUTHORITIES (cont’d)
Page(s)
vi
Wilner v. NSA,
592 F.3d 60 (2d Cir. 2009) ................................................. passim
Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007) .................................................... 61
Xerox Corp. v. Town of Webster,
65 N.Y.2d 131 (1985) ................................................................. 20
Statutes
5 U.S.C. § 552(a)(6)(A)(i) ................................................................ 33
5 U.S.C. § 552(b) ............................................................................. 32
5 U.S.C. § 552(b)(7) ........................................................................ 33
PUB. HEALTH LAW § 2803-c(3)(f) ..................................................... 38
PUB. HEALTH LAW § 2805-g(3) ........................................................ 38
PUB. OFF. LAW § 86(4) ..................................................................... 17
PUB. OFF. LAW § 87(2) ..................................................................... 17
PUB. OFF. LAW § 87(2)(a) .......................................................... 38, 59
PUB. OFF. LAW § 87(2)(b) ................................................................ 38
PUB. OFF. LAW § 87(2)(e) ........................................................... 45, 50
PUB. OFF. LAW § 87(2)(f) ............................................................ 45, 51
PUB. OFF. LAW § 89(3)(a) .................................................... 27, 28, 29
PUB. OFF. LAW § 89(4)(a) ................................................................ 27
TABLE OF AUTHORITIES (cont’d)
Page(s)
vii
Other Authorities
Governor’s Bill Jacket, L. 1977, ch. 933, § 1 ............................ 32, 52
Guidelines for Investigations, Handschu v. Special
Servs. Div., No. 1:71-cv-02203 (S.D.N.Y. Mar. 27,
2017), ECF No. 473 ...................................................................... 7
New York City Department of Health and Mental
Hygiene, Sexual Health Clinics,
https://perma.cc/A66T-3C74 (last visited May 3,
2017) ........................................................................................... 38
U.S. Department of Justice, Summary of Annual FOIA
Reports for Fiscal Year 2015, available at
https://perma.cc/TT4K-YLA5 ..................................................... 35
PRELIMINARY STATEMENT
Petitioners Talib Abdur-Rashid and Samir Hashmi brought
these article 78 proceedings under the Freedom of Information
Law (FOIL), PUB. OFF. LAW §§ 84–90, seeking public disclosure of
records of any counterterrorism surveillance or investigation of
them personally or associated organizations. The Appellate
Division, First Department unanimously found that the NYPD
properly denied their requests with a circumscribed response—one
that did not confirm or deny the existence of responsive records—
because any other response would reveal whether petitioners and
the organizations were subjects of counterterrorism surveillance
or investigation. This Court should affirm.
This case is ultimately about what form the denial of
petitioners’ FOIL requests should take. The fundamental question
here is whether, under narrow circumstances, an agency denying
a request for records based on one of FOIL’s enumerated
exemptions to disclosure may decline to specify whether
responsive records do or do not exist, when that statement would
itself disclose information protected by an exemption. Petitioners
2
do not seriously dispute that information revealing the subjects of
counterterrorism surveillance or investigation is exempt from
disclosure. Petitioners instead press a paradox: in their view, to
deny requests for records reflecting that information, the NYPD
had to confirm or deny the existence of responsive but exempt
records, even though that would itself reveal the same information
they evidently agree is exempt.
Petitioners urge this Court to reject what, properly
understood, is nothing more than a common-sense and case-
specific application of FOIL’s enumerated exemptions to
disclosure. Whether by accident or the deliberate design of the
requester, some FOIL requests will be tailored so that the only
way for an agency to avoid revealing protected information when
responding will be to neither confirm nor deny the existence of
responsive but exempt records. It makes little sense to adopt the
rigid per se rule that petitioners propose—which would routinely
force agencies, when presented with requests in this vein, to
reveal information captured by a statutory exemption just by
3
denying requests, and thus nullify the Legislature’s judgment as
to the sort of information that should be kept confidential.
The availability of a circumscribed response is compatible
with FOIL’s express terms, not only because it honors the
exemptions to disclosure set forth in the statutory text, but also
because the statute only requires agencies to articulate why a
request has been denied, not to answer the existential question of
whether exempt records do or do not exist. The recognition of a
circumscribed response also effectuates the statutory intent, both
by respecting the Legislature’s considered judgment as to the sort
of information that should not be disclosed as a matter of public
policy, and by interpreting FOIL consistently with the federal
counterpart on which it was modeled, under which the availability
of this kind of response is well settled.
The NYPD properly employed a circumscribed response to
petitioners’ requests, as the Appellate Division found. Petitioners
do not contest that their requests were structured so that the
NYPD could not confirm or deny the existence of responsive
records without also disclosing whether petitioners and related
4
organizations were subjects of counterterrorism surveillance or
investigation. That information is itself protected under FOIL’s
law enforcement and public safety exemptions—a point, again,
that petitioners do not actually dispute.
Petitioners would have this Court compel the NYPD to
routinely disclose the identities of subjects of counterterrorism
surveillance or investigation. That would arm individuals and
organizations intent on committing acts of terrorism in New York
City or elsewhere with highly valuable information enabling them
to evade detection, develop intelligence countermeasures, refrain
from contact with potential subjects of investigation, and discern
the identities of undercover officers and confidential informants.
Nor do the problems with petitioners’ proposal stop there. If a
circumscribed response is categorically unavailable under FOIL,
as petitioners suggest, then artful requesters can make an end-
run around the statute’s exemptions in a range of situations. Such
a result cannot be squared with FOIL’s text or design.
5
QUESTIONS PRESENTED
1. Does FOIL permit an agency to refrain from specifying
whether there are exempt records responsive to a request, when
confirming or denying the existence of responsive records would
itself reveal information protected by an enumerated exemption to
disclosure?
2. Did the NYPD properly decline to specify whether
there are exempt records responsive to petitioners’ requests for
records of any surveillance or investigation of them and associated
organizations, where doing so would reveal whether petitioners
and the organizations were subjects of surveillance or
investigation, and thus disclose information protected by FOIL’s
law enforcement and public safety exemptions?
STATEMENT OF THE CASE
A. The NYPD’s efforts to detect and prevent
terrorism in New York City
It is an unfortunate but unavoidable truth: New York City is
a prime target for terrorism, and will continue to be so for the
foreseeable future (Record on Appeal (“R.”) 310). The attacks of
6
9/11 brought home this reality, and dozens of credible terrorist
plots since have repeatedly confirmed it (R. 310–17).
To face this real and persistent threat, the NYPD has
developed counterterrorism capabilities without precedent in its
long history and without parallel in local law enforcement
(R. 309–10). With these capabilities, the NYPD has partnered
with national, state, and local agencies to thwart numerous
specific terrorist plots threatening New York City, its eight and a
half million residents, and its more than fifty million annual
visitors (R. 310–17). Repeatedly, the NYPD has played a
significant and sometimes exclusive role in preventing acts of
terrorism and bringing the wrongdoers to justice (R. 317).
The NYPD, through the work of its Intelligence Bureau in
particular, conducts a wide range of activities to identify and
evaluate threats of terrorism—including, for example, deploying
undercover officers, utilizing confidential informants, visiting
public places, attending public events, and monitoring online
forums (R. 309–10). Among those activities, the Intelligence
Bureau operated the now-disbanded Demographics Unit, which
7
collected publicly accessible information about the City’s
demographic makeup to assist the NYPD in responding to events
around the world and at home (R. 776–77).
For those counterterrorism investigations targeting specific
subjects, the NYPD is required to comply with the oversight
guidelines set forth in the consent decree in Handschu v. Special
Services Division (R. 310). The Handschu guidelines—announced
in 1985 and modified most recently in March 2017 to increase
oversight—prohibit investigations motivated by racial, ethnic, or
religious discrimination. See Guidelines for Investigations,
Handschu v. Special Servs. Div., No. 1:71-cv-02203 (S.D.N.Y. Mar.
27, 2017), ECF No. 473. Covered investigations are subject to
preapproval and monitoring by an eleven-member committee,
which includes a civilian representative (currently, a former
federal judge) empowered to make annual reports on compliance
and to communicate with the federal judge overseeing the consent
decree. See id. These guidelines exist alongside other oversight
mechanisms, like the independent Office of the Inspector General
8
for the NYPD, created in 2013 to review the NYPD’s operations
and practices. See New York City L.L. 70 of 2013.
Integral to the NYPD’s ongoing counterterrorism and
intelligence efforts are the considerable precautions the NYPD
takes to ensure that the precise scope and extent of its
counterterrorism capabilities, strategies, priorities, methods, and
sources are not publicly disclosed, because such information is of
great interest to those intent on committing acts of terrorism in
the City (R. 317–19). And as explained in greater detail below, it is
particularly important that the identities of those subject to
counterterrorism surveillance or investigation not be publicly
disclosed (R. 307–08, 318–19, 321, 322).
B. Petitioners’ requests for information about
the NYPD’s counterterrorism operations
It is in this context that the Asian American Legal Defense
and Education Fund (AALDEF), a national advocacy organization,
coordinated a “mass Freedom of Information campaign” in an
attempt to force the NYPD to reveal highly sensitive information
about its ongoing counterterrorism efforts (R. 324, 328–30).
9
Launched in 2012, AALDEF’s “Go FOIL Yourself!” campaign
encouraged individuals to submit FOIL requests to the NYPD
seeking records of any surveillance or investigation of themselves
as individuals or of associated organizations (R. 328–29). In its
campaign literature, AALDEF clearly stated its intention to
collect, aggregate, and digest the NYPD’s responses to individual
requests in order to publicly disclose the scope and extent of the
NYPD’s surveillance and investigation activities (id.).
In October 2012, after AALDEF announced its campaign
(but allegedly independent of it), Abdur-Rashid and Hashmi
submitted separate FOIL requests to the NYPD seeking records
related to any recent surveillance of themselves personally or of
the organizations with which they associated (R. 258–60, 720–21).
Specifically, Abdur-Rashid sought all records related to any
surveillance and investigation of him, or the mosque of which he
was the imam, between 2006 and 2012 (R. 258–60). Hashmi,
likewise, requested all records related to surveillance and
investigation of him and the Rutgers Muslim Student Association,
of which he was a member, from 2006 to 2012 (R. 720–21).
10
The NYPD denied both requests, informing Abdur-Rashid
and Hashmi, as relevant here, that if any responsive records did
exist, they would be exempt from disclosure under FOIL’s law
enforcement and public safety exemptions (R. 267–68, 727–28). In
responding to the requests, the NYPD neither confirmed nor
denied the existence of responsive records because doing so would
reveal whether petitioners and the organizations were subjects of
counterterrorism surveillance or investigation (R. 321–23).
Resolving petitioners’ administrative appeals, the NYPD
exhaustively explained the reasons for its determinations in
separate four-page, single-spaced letters (R. 271–74, 733–36). The
letters neither confirmed nor denied the existence of responsive
records, but noted that, to the extent any such records existed,
they “would be exempt from disclosure under FOIL’s public safety
and law enforcement exemptions” (R. 273, 735).
C. The commencement of these proceedings and
the decisions below
Abdur-Rashid and Hashmi then brought these article 78
proceedings in Supreme Court, New York County (R. 238–49, 705–
11
14). Although the petitions were filed on the same day by the same
counsel and raised identical legal issues, they were treated as
separate cases and assigned to different judges (id.). Petitioners
speculated, evidently based on Associated Press articles
purporting to report on the NYPD’s Demographics Unit, that they
were subjects of NYPD surveillance or investigation in the years
leading up to their FOIL requests (R. 241-43, 404, 707–09, 769).
They sought the disclosure of records concerning any such
surveillance or investigation (R. 248–49, 714).
The NYPD moved to dismiss both petitions on the basis that
FOIL authorized it to deny the requests with a circumscribed
response—one that neither confirmed nor denied the existence of
responsive but exempt records—because that information is itself
protected from disclosure by the statute’s law enforcement and
public safety exemptions (R. 332-64, 842-73). In support, the
NYPD submitted detailed affidavits by Thomas Galati, Chief of
Intelligence of the NYPD’s Intelligence Bureau (R. 306–27, 741–
61). Chief Galati explained that compelling the NYPD to confirm
or deny the existence of exempt records responsive to these and
12
similar requests would reveal whether specific individuals and
organizations were subjects of counterterrorism surveillance or
investigation, providing those intent on committing acts of
terrorism with “unprecedented and invaluable information”
(R. 307–08, 742).
Chief Galati also explained at length how a person who
learned that he or his associates were subjects of an NYPD
investigation could thwart that investigation by altering his
behavior and scrutinizing his contacts more carefully (R. 308, 321,
743, 756). That knowledge would not only compromise the
integrity and value of the investigation, but it also could endanger
the lives and safety of individuals cooperating with it (R. 308, 326,
743, 760–61). Conversely, those who know they are not the subject
of an investigation can act with greater freedom while engaging in
illegal activity or recruiting others to do the same (R. 308, 743).
In short, disclosure of the specific subjects of surveillance or
investigation would reveal highly sensitive information about the
scope of the NYPD’s counterterrorism capabilities, strategies,
priorities, methods, and sources, threatening to impair the
13
NYPD’s efforts to detect and prevent threats (R. 308, 742–43).
Those risks are only heightened, Chief Galati explained, when
there are multiple requests covering similar ground (R. 323–24,
326, 758–59, 761). In particular, he described how a concerted
effort to elicit information on a broader scale—like AALDEF’s “Go
FOIL Yourself!” campaign—compounds the harms posed by one-
off disclosures by presenting more data from which individuals
can draw even deeper inferences about the scope and nature of the
NYPD’s counterterrorism efforts (id.).
In Abdur-Rashid’s case, Supreme Court (Hunter, J.) held
that the NYPD properly refused to neither confirm nor deny the
existence of records responsive to the request (R. 20–24). Doing so,
the court held, would reveal information that would jeopardize the
NYPD’s counterterrorism operations, undermine current and
future investigations, enable those intent on committing acts of
terrorism to evade detection, and impair the safety of undercover
officers and informants (id.). The court wrote that the NYPD’s
circumscribed response was in the spirit of FOIL and the
appellate decisions interpreting it (R. 24).
14
But in a subsequent decision in Hashmi’s case, Supreme
Court (Moulton, J.) declined to dismiss the petition (R. 27–45).
The court held, in effect, that an agency never has the option of
issuing a circumscribed response to a FOIL request—a response
that neither confirms nor denies the existence of responsive
records—regardless of whether the mere acknowledgment of the
existence of responsive records would cause a harm cognizable
under one or more of FOIL’s enumerated exemptions (R. 41–45).
Failing to appreciate that such a response is already embedded in
FOIL’s enumerated exemptions and overarching design, the court
concluded that the decision as to whether such a circumscribed
response should be available “is one better left to the State
Legislature, not the Judiciary” (R. 41).
On appeal from both Supreme Court orders, the Appellate
Division, First Department unanimously held that agencies can
provide a circumscribed response to certain FOIL requests—
neither confirming nor denying the existence of responsive
records—where doing so is required to prevent harm cognizable
15
under an enumerated FOIL exemption (R. 15).1 The court
observed that such a response is consistent with FOIL’s intent and
general purpose because it allows an agency to safeguard
information that rightly falls under a FOIL exemption (R. 15–16).
The Appellate Division found it instructive that under the
federal Freedom of Information Act (FOIA), on which FOIL is
modeled, courts have widely approved of the kind of circumscribed
response the NYPD provided here (R. 16). At the same time, the
court observed that the use of such a response is not unlimited
and must be appropriate to the particular request at hand, with
the agency seeking to invoke the response bearing the burden of
proving that the response is justified (R. 17–18). As to petitioners’
requests, the court held that Chief Galati’s affidavits supplied
ample reason to conclude that compelling the NYPD to confirm or
deny the existence of responsive records would cause harm under
FOIL’s law enforcement and public safety exemptions (R. 16–17).
This Court granted petitioners leave to appeal (R. 10).
1 While the cases were appealed and briefed separately, they were argued
and decided together.
16
ARGUMENT
FOIL reflects the Legislature’s judgment that government
records should be presumptively available to the public except in
instances where the release of information would be expected to
cause identified harms. Petitioners’ requests here fall directly
within that exempted realm because petitioners seek information
indicating whether they and associated organizations were the
subjects of counterterrorism surveillance and investigation. While
never disputing that information about the specific targets of
surveillance or investigation implicates exemptions to disclosure,
petitioners nonetheless seek to force the NYPD to deny their
requests in a form that would necessarily reveal that information
anyway. Their proposal would compel the NYPD to reveal exempt
information when denying requests for that same information, an
approach that finds no support in FOIL’s terms or purpose.
17
POINT I
FOIL DOES NOT REQUIRE AN
AGENCY TO REVEAL PROTECTED
INFORMATION WHEN DENYING A
REQUEST FOR EXEMPT RECORDS
Petitioners are correct that FOIL creates a basic
presumption that information maintained by government
agencies, in any physical form, will be open to the public. See PUB.
OFF. LAW §§ 86(4), 87(2). But that presumption is subject to
several enumerated exemptions, under which agencies may
lawfully “deny access” to information that would be expected to
cause harm if publicly disclosed. Id. § 87(2). The statute’s
exemptions reflect the Legislature’s policy judgment that the
disclosure of some categories of information is against the public
interest. See Matter of Markowitz v. Serio, 11 N.Y.3d 43, 49–50
(2008). To be sure, the exemptions “are to be narrowly read,” but
they must also be afforded meaningful reach and application
“consistent with the legislative intent and with the general
purpose and manifest policy underlying FOIL.” Hanig v. State
Dep’t of Motor Vehicles, 79 N.Y.2d 106, 110 (1992) (quoting Fed’n
18
of N.Y. State Rifle & Pistol Clubs, Inc. v. N.Y.C. Police Dep’t, 73
N.Y.2d 92, 96 (1989)).
Petitioners ask this Court to reject a straightforward and
sensible application of FOIL’s enumerated exemptions—one that
permits an agency, when presented with a particular kind of
request, to neither confirm nor deny whether responsive records
exist when that statement alone would disclose information
protected by an exemption. Under the federal law that served as
the model for FOIL, the availability of this circumscribed
response—often referred to as a Glomar response2—is “well
settled.” Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009). Federal
appellate courts have uniformly concluded that such a response is
appropriate for a limited universe of requests that are tailored so
that “the only way” for an agency to avoid disclosing protected
information when responding is to neither confirm nor deny the
existence of responsive records. Id.
2 The term has its origins in requests for records about the CIA’s alleged use
of a ship called the Glomar Explorer in an attempted recovery of a sunken
Soviet submarine. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
19
Like its federal counterpart, FOIL allows agencies, when
presented with this kind of request, to neither confirm nor deny
the existence of responsive records when doing so would cause a
harm covered by one of the statute’s enumerated exemptions. In
advocating for a per se rule that would mandate the disclosure of
whether responsive records exist, with no room for exceptions,
petitioners misconceive the nature of the circumscribed response,
which is just a case-specific application of the statute’s
exemptions. Despite petitioners’ assertion to the contrary, the
Appellate Division did not create a new exemption, because it
simply recognized a response that effectuates the exemptions
enumerated in the statute. As explained below, petitioners’
position is incompatible with the Legislature’s judgment that
some information should not be publicly disclosed, ignores the
common-sense intuition that agencies should not have to disclose
protected information simply to deny a request, and finds no
support in FOIL’s terms or purpose.
20
A. Forcing agencies to reveal protected
information when denying requests would
thwart the statutory text and purpose.
While FOIL reflects a “general policy of disclosure,” Fink v.
Lefkowitz, 47 N.Y.2d 567, 571 (1979), the Legislature also
understood that public disclosure is not always in the public
interest. The Legislature thus struck a balance between the
public’s general interest in disclosure and the “legitimate need on
the part of the government to keep some matters confidential.” Id.
FOIL’s enumerated exemptions, including its law enforcement
and public safety exemptions, reflect the Legislature’s considered
judgment as to the categories of information that should not be
disclosed “as a matter of public policy.” Xerox Corp. v. Town of
Webster, 65 N.Y.2d 131, 132 (1985). If information falls within the
ambit of an exemption, courts should refrain from “further policy
analysis,” as it is enough that the Legislature has seen fit to
protect the information from disclosure. Hanig, 79 N.Y.2d at 112.
Petitioners’ position—that an agency must confirm or deny
the existence of responsive records even when doing so would
reveal information protected by an enumerated exemption—would
21
upset the careful balance struck by the Legislature, as reflected in
the statute’s plain terms. After all, FOIL is not about whether
records do or do not exist; rather, it is about the kinds of
information that should and should not be publicly disclosed.
Compelling an agency to disclose information expected to cause
harm just by denying a request would negate the Legislature’s
judgment as to the sort of information that should not be made
publicly available. Cf. Prisoners’ Legal Servs. v. N.Y.S. Dep’t of
Corr. Servs., 73 N.Y.2d 26, 32 (1988) (observing that making
disclosure turn on where information is stored, not its nature,
would be “inimical” to legislative intent).
Not only is the case-by-case availability of the kind of
circumscribed response endorsed by the court below consistent
with the Legislature’s decision to carve out enumerated
exemptions to disclosure, it also makes good sense. It would be
perverse to require an agency to disclose protected information
when presented with a specific type of request—just by confirming
or denying the existence of responsive records—when the very
22
same information would be protected from disclosure if it
appeared in underlying records themselves.
For the limited subset of requests that are tailored so that
an agency cannot confirm or deny the existence of responsive
records without revealing protected information, agencies must be
able to issue a circumscribed response. Otherwise, anyone could,
just with an artfully crafted request, force agencies to disclose
protected information about an individual’s or organization’s
interaction with the government in any number of ways. A subset
of requests will therefore demand a circumscribed response, lest
an agency disclose information the Legislature intended to protect
from disclosure. These cases illustrate the point: because
petitioners tailored their requests to seek information about any
counterterrorism surveillance or investigation of them or their
associated organizations specifically, the NYPD could not confirm
or deny the existence of responsive but exempt records without
also revealing whether petitioners and the organizations were
subjects of surveillance or investigation.
23
The common-sense intuition that confidential information
should not be disclosed when denying a request for the
information is not unique to the FOIL context. Sometimes, a
circumscribed response is needed to effectuate constitutional,
statutory, and common-law protections. For example, an
attorney’s acknowledgment that a category of documents exists
can reveal her mental impressions, encroaching on the work
product privilege. Shelton v. Am. Motors Corp., 805 F.2d 1323,
1328 (8th Cir. 1986). Likewise, a response to a subpoena
conceding the existence of documents can constitute a testimonial
act undermining the constitutional protection against self-
incrimination. United States v. Hubbell, 530 U.S. 27, 36-37 (2000).
Petitioners nonetheless argue that permitting agencies to
use a circumscribed response in those narrow circumstances when
a detailed response would run afoul of a FOIL exemption “strikes
down years of precedent and creates a void in existing law” (App.
24
Br. at 15).3 But the Appellate Division did not create a new
exemption, as petitioners appear to believe, nor did it need to. The
court simply recognized that the information petitioners seek falls
within two enumerated exemptions: the law enforcement and
public safety exemptions. And petitioners fail to dispute that
information revealing the specific targets of counterterrorism
surveillance or investigation is protected under these exemptions.
Indeed, petitioners have never disputed that such information
could be withheld if it were written on a piece of paper maintained
in an NYPD file cabinet.
But petitioners still press a paradox: their view, distilled to
its essence, is that to deny a targeted request for exempt
information, an agency must issue a response that would itself
disclose the same information. It is thus petitioners’ position—not
the NYPD’s—that would render FOIL’s exemptions toothless in
3 The fact that this Court has not previously ruled on the availability of a
circumscribed response under FOIL is not nearly as remarkable as
petitioners believe. As a comparison, it was more than forty years after the
enactment of FOIA that the Second Circuit first recognized the availability of
a circumscribed response under that statute. See Wilner, 592 F.3d at 64.
25
the face of artful requests. Cf. Gelbard v. Genesee Hosp., 87 N.Y.2d
691, 697 (1996) (finding that statutorily specified requirement was
“too important to be circumvented by artful pleading”).
Nor does the decision below contradict the requirement that
FOIL’s exemptions be construed narrowly, as petitioners claim
(App. Br. at 15). The use of the circumscribed response does not
extend the bounds of FOIL’s exemptions by one iota. The
information at issue here is not exempt from disclosure because
the NYPD provided a circumscribed response. Rather, it is exempt
because confirming or denying whether an individual is under
investigation or surveillance would interfere with law enforcement
investigations and endanger the life and safety of others. The
Appellate Division did not expand any exemption, but instead
understood that a circumscribed response will sometimes be
necessary to prevent requesters from narrowing enumerated
exemptions to the vanishing point through artfully phrased
requests. Meanwhile, petitioners’ position would thwart the
statutory design, and effectively rewrite the statute, by forcing
agencies to disclose information that the Legislature exempted.
26
The Legislature has already made a policy determination
that certain information should not be disclosed, as reflected in
FOIL’s enumerated exemptions and overarching design. Like the
court below, this Court should decline petitioners’ invitation to
ignore that legislative judgment, and reject petitioners’ proposed
backdoor gambit to evade enumerated exemptions to disclosure.
B. FOIL requires agencies to fully explain the
reasons for denying requests, not to always
specify whether responsive records exist.
While petitioners accuse the Appellate Division of engrafting
onto FOIL an extra-statutory procedure (App. Br. at 18), it is
actually petitioners who seek to write into FOIL a new categorical
requirement that has no basis in the text or purpose of the
statute. Contrary to petitioners’ contentions, nothing in the
statute imposes any per se requirement that the agency confirm or
deny the existence of records whenever it denies a request.
When an agency is first presented with a request for records,
it has three options: (1) it can grant the request and “make such
record[s] available”; (2) it can “deny [the] request in writing”; or
(3) it can provide a “statement of the approximate date … when
27
[the] request will be granted or denied.” PUB. OFF. LAW § 89(3)(a).
If the agency denies a request, and an administrative appeal
ensues, the agency then has two options: (1) it can “provide access
to the record[s] sought”; or (2) it can “fully explain in writing …
the reasons for further denial.” Id. § 89(4)(a).
Ordinarily, an agency will specify whether responsive
records exist when first denying a request, to lend more
concreteness to any further discussions between the requester and
the agency and to satisfy its burden to justify the decision to
withhold exempt information. But under the statute’s plain
language, the only unyielding requirement when an agency denies
a request and the requester pursues an administrative appeal is
that the agency “fully explain” the reasons for the denial. Id.
The Legislature did not dictate what form this explanation
must take, recognizing that an agency’s response may justifiably
vary from case to case, depending on the specific circumstances. In
particular, there is nothing in FOIL that imposes a categorical
requirement that an agency confirm or deny the existence of
records when denying a request. Under the statute’s plain
28
language, so long as the agency “fully explain[s]” why a request
has been denied when asked to do so in the context of an
administrative appeal, the statute’s dictates are satisfied. Id.
To avoid this clear statement about the flexibility afforded to
agencies when responding to requests, petitioners pluck an
isolated clause from one of FOIL’s procedural provisions, divorce it
from its context, and on that flimsy foundation assert that FOIL
has a “certification requirement” (App. Br. at 21–22). Petitioners
seize upon the italicized language in the provision below:
If an agency determines to grant a request in
whole or in part, and if circumstances prevent
disclosure to the person requesting the record or
records within twenty business days from the
date of the acknowledgement of the receipt of the
request, the agency shall state, in writing, both
the reason for the inability to grant the request
within twenty business days and a date certain
within a reasonable period, depending on the
circumstances, when the request will be granted
in whole or in part. Upon payment of, or offer to
pay, the fee prescribed therefor, the entity shall
provide a copy of such record and certify to the
correctness of such copy if so requested, or as the
case may be, shall certify that it does not have
possession of such record or that such record
cannot be found after diligent search.
PUB. OFF. LAW § 89(3)(a) (emphasis added).
29
When viewed in its context, the italicized language clearly is
not talking about an agency’s obligations when denying a request.
Rather, the certification requirement described in this provision
arises only when “an agency determines to grant a request”
because the records are not exempt, and the agency later finds it
“does not have possession” of a particular non-exempt record or is
unable to locate the record after a “diligent search.” Id. (emphasis
added); see, e.g., Rattley v. NYPD, 96 N.Y.2d 873, 875 (2001).
In these circumstances, a certification from the agency
makes sense because the agency will not disclose records that it
has determined the requester is facially entitled to receive. But
there is no reason to import that special requirement into
circumstances, as in this case, where requesters are not facially
entitled to the records they seek. If anything, the notion that the
Legislature imposed a categorical certification requirement when
an agency is unable to satisfy a granted request for non-exempt
records, but declined to impose one when an agency denies a
request for exempt records, undermines petitioners’ position here.
30
In any event, petitioners’ argument stumbles on a second
hurdle. Even if this provision were understood to reflect a general
preference for certification in the ordinary course of a FOIL denial
(and it does not), it would not follow that such a general
procedural preference should trump the statute’s enumerated
exemptions in those cases when executing a certification would
itself disclose information captured by an exemption. If
petitioners’ reading of the provision were correct, it would only
suggest that, in certain cases, there may be a conflict between the
statute’s general procedural preference and its exemptions.
The provision relied on by petitioners does not purport to
resolve such a conflict; that is, it offers no answer to the more
fundamental question of whether an agency should be forced to
“certify” whether exempt records exist when that would itself
implicate an exemption to disclosure. In the case of such a conflict,
the exemption—part of the statute’s core substantive provisions—
should take precedence over the general procedural provision cited
by petitioners. But the Court need not even reach this question,
31
because petitioners misread the procedural provision and, in fact,
there is no conflict.
Petitioners are of course free to advocate for a more
expansive certification requirement than the one now provided for
under FOIL. But the proper venue for such a proposal is the
Legislature, not this Court. The statute, as it exists today, imposes
a simple requirement: when an agency denies a request, it must
provide a meaningful explanation when asked to do so. If the
agency explains why it can neither confirm nor deny the existence
of records, the agency need not provide the requested records.
FOIL does not require the additional steps that petitioners
conjure through their convoluted reading of the statute.
C. Petitioners offer no reason to depart from the
uniform interpretation of FOIL’s federal
counterpart.
FOIL is, by legislative design, “patterned after the Federal
Freedom of Information Act (FOIA).” Encore Coll. Bookstores, Inc.
v. Auxiliary Serv. Corp. of State Univ. of N.Y., 87 N.Y.2d 410, 418
(1995). The legislative history is replete with evidence that the
Legislature intended FOIL to mirror FOIA and be interpreted
32
consistently with the body of law developed by federal courts when
applying that statute.4 Thus, as this Court has held, federal
decisional law addressing FOIA is “instructive” when interpreting
FOIL’s analogous provisions. Fink, 47 N.Y.2d at 572 n.*; Lesher v.
Hynes, 19 N.Y.3d 57, 64 (2012).
This appeal concerns aspects of FOIL that were drawn
directly from FOIA.5 In crafting FOIL, the Legislature adopted
FOIA’s basic structure—a presumption of public disclosure
tempered by several enumerated exemptions. See 5 U.S.C.
4 See, e.g., Governor’s Bill Jacket, L. 1977, ch. 933, § 1: Mem. of Senator
Marino dated July 27, 1977 at 1 (stating that FOIL was designed to
“conform” to FOIA); Mem. of Senator Anderson dated Aug. 2, 1977 at 1
(same); Mem. of Office of the Lieutenant Governor dated July 25, 1977 at 2
(stating that FOIL was meant to “bring state law in line with federal law”);
Mem. of State Div. of Criminal Justice Servs. dated Aug. 3, 1977 at 1, 3
(stating that FOIL was “closely patterned” after FOIA and the rules would be
“virtually identical”); Mem. of State Police dated July 29, 1977 at 5 (noting
FOIA’s “developed body of case law”); Mem. of State Banking Dep’t dated
Aug. 3, 1977 at 2 (noting FOIA’s “substantial body of case law”).
5 Over the years, the Legislature has periodically amended FOIL to depart in
small ways from FOIA. The amendments have often narrowed the universe of
information that must be publicly disclosed by broadening the statute’s
exemptions to disclosure. See, e.g., L. 1990, ch. 288, § 1 (broadening
exemption relating to confidential commercial information); L. 2001, ch. 368,
§ 1 (creating exemption relating to information about information technology
assets); L. 2003, ch. 403, § 3 (creating exemption relating to information
about energy infrastructure). None of the Legislature’s amendments has
changed FOIL’s core structure or any aspect of the statute relevant here.
33
§ 552(b). The Legislature also embraced many of FOIA’s specific
exemptions to disclosure, including a nearly identical law
enforcement exemption and a version of the public safety
exemption that expands on its federal analog. See id. § 552(b)(7);
see also Lesher, 19 N.Y.3d at 64 (observing that FOIL’s law
enforcement was “modeled” on FOIA’s parallel exemption). And
like FOIL, FOIA does not require an agency to confirm or deny the
existence of records when responding to a request seeking exempt
records, but rather simply directs an agency to state “the reasons”
for its determination. 5 U.S.C. § 552(a)(6)(A)(i).
Even though FOIA also contains no explicit statutory
provision permitting agencies to provide a circumscribed response,
every federal appellate court to have considered the question has
held that an agency need not confirm or deny the existence of
records when it can “tether its refusal to respond to one of the nine
FOIA exemptions.” Wilner, 592 F.3d at 68 (citation omitted); see,
e.g., Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992); Ely v. FBI, 781
F.2d 1487 (11th Cir. 1986); Phillippi v. CIA, 546 F.2d 1009 (D.C.
34
Cir. 1976).6 Federal courts also routinely permit such a response
specifically in connection with FOIA’s law enforcement exemption.
See, e.g., Platsky v. NSA, 547 F. App’x 81, 82 (2d Cir. 2013);
Catledge v. Mueller, 323 F. App’x 464, 467 (7th Cir. 2009).
This uniform body of case law confirms how plain is the
conclusion that petitioners would have this Court reject. The
circumscribed response recognized by these courts is a sensible
application of FOIA’s enumerated exemptions. In some
circumstances, as a practical matter, it is “the only way in which
an agency may assert that a particular FOIA statutory exemption
covers the existence or nonexistence of the requested records.”
Wilner, 592 F.3d at 68 (quotation marks omitted). It is no surprise
that federal courts are in agreement that agencies, when faced
with a particular kind of request, should be able to employ a
response that is compatible with FOIA’s terms and is the sole
6 Phillippi, the seminal case recognizing the availability of the circumscribed
response under FOIA, was part of the body of case law in existence at the
time the Legislature decided to pattern FOIL on FOIA.
35
means of avoiding the disclosure of information that Congress
believed would cause harm.7
While petitioners ask this Court to depart from longstanding
federal consensus, they do not identify any aspect of FOIL that
differs from FOIA in a way that would warrant such a departure.
Every federal appellate court to have addressed the issue has
concluded that a circumscribed response is a necessary tool for
avoiding the disclosure of protected information. This Court
should join this “well settled” body of law, Wilner, 592 F.3d at 68,
and permit a circumscribed response where a different response
would obviate FOIL’s enumerated exemptions.
7 The amici brief submitted by the Reporters Committee for Freedom of the
Press and media organizations posits that there has been an “explosion” in
federal agencies’ use of the circumscribed response (Amici Br. at 3). Rhetoric
aside, the brief indicates that by 2015, an average of nine judicial decisions
per year dealt with an agency’s invocation of a circumscribed response (Amici
Br. at 9–10). Putting that number in context, in fiscal year 2015, the federal
government received 713,168 FOIA requests. U.S. Department of Justice,
Summary of Annual FOIA Reports for Fiscal Year 2015 at 2, available at
https://perma.cc/TT4K-YLA5. Thus, according to amici’s figures and chart,
only 0.001% of FOIA requests resulted in Glomar litigation. By contrast,
federal agencies released information in full or in part in response to 92.7% of
processed requests. Id. at 5. Moreover, amici make no argument that the
various revelations made possible by FOIL requests that they laud in their
brief (Amici Br. at 21–25) would have been curtailed in any way by
recognition of a circumscribed response under FOIL.
36
D. Petitioners’ approach would render agencies
powerless to protect personal privacy and
avoid harms captured by other exemptions.
Petitioners’ advocacy for a categorical prohibition on the use
of a circumscribed response under FOIL also betrays a lack of
appreciation for the wide-ranging adverse consequences that
would follow if this Court adopted such a rigid per se rule. To be
sure, these proceedings arise in the counterterrorism context,
where the harms of disclosure can be especially dramatic, but the
logic of petitioners’ argument extends much further. Petitioners
would, apparently, preclude agencies from using a circumscribed
response in connection with any and all of FOIL’s enumerated
exemptions. Despite the broad sweep of their position, petitioners
never grapple with the ramifications.
Take, for example, petitioners’ reliance on this Court’s
decision in Hanig v. State Department of Motor Vehicles, 79
N.Y.2d 106 (1992). Petitioners accuse the Appellate Division of
misinterpreting Hanig (App. Br. at 22), but that decision instead
vividly illustrates the problems with petitioners’ approach. In
Hanig, the victim of a motor vehicle accident filed a FOIL request
37
seeking the license application of the driver who had struck her.
Id. at 108. Upon receiving the records, the victim challenged the
Department of Motor Vehicles’ redaction of a portion of the
application where the driver would have had to indicate whether
he had one of a series of specific medical conditions, including: a
convulsive disorder, epilepsy, fainting or dizzy spells, and a heart
ailment. Id. at 108–09. This Court held that the DMV had
properly redacted the record. Id. at 110.
Petitioners correctly point out that the agency in Hanig did
not provide a circumscribed response (App. Br. at 23), but it had
no need to: acknowledging that the driver had to provide an
answer to a question about medical conditions does not reveal how
he answered the question. But consider an alternate scenario in
which the petitioner in Hanig filed a series of FOIL requests, first
asking for the DMV’s records indicating that the applicant had a
convulsive disorder, then for records indicating epilepsy, then
fainting spells, and so forth. Although this Court’s ruling makes
clear that any responsive information that the DMV possessed
was exempt, petitioners’ theory would require the DMV to first
38
acknowledge that it possessed such information before declining to
disclose it. In acknowledging that it possessed the information, the
agency would make the subsequent denial superfluous. Admitting
the existence of records showing that a license applicant has a
medical condition is functionally the same as disclosing a record
with that information. Surely neither FOIL nor this Court’s
precedent can be so easily rendered meaningless through artfully
phrased FOIL requests.
Or consider how petitioners’ proposed approach would
extend to any records maintained by the sexual health clinics
operated by the City for the benefit of all New Yorkers.8 The
records of individuals receiving services at clinics are plainly
exempt from disclosure. PUB. OFF. LAW § 87(2)(a), (b); PUB.
HEALTH LAW §§ 2803-c(3)(f), 2805-g(3). Thus, if a partner, parent,
or anyone else requested records of whether a particular person
had received services at one of the City’s clinics, the request would
be properly denied. But under petitioners’ theory, in declining to
8 See New York City Department of Health and Mental Hygiene, Sexual
Health Clinics, https://perma.cc/A66T-3C74 (last visited May 3, 2017).
39
answer whether records of a particular person’s treatment existed,
the agency would have to either confirm or deny that the records
existed, thus revealing whether the person sought treatment. As
this example demonstrates, the need for a circumscribed response
can be especially acute in connection with requests targeted at a
specific individual or organization, but petitioners’ categorical rule
would preclude use of a circumscribed response in those situations
too, rendering agencies powerless to protect personal privacy.
The problems posed by placing personal privacy in the hands
of requesters, rather than public officers, also extend to requests
for documents like those sought by petitioners here. It happens
that petitioners are seeking documents regarding surveillance or
investigations of themselves or organizations they are associated
with, but their position would apply equally to requests by third
parties seeking similar documents regarding others. See Scott,
Sardano & Pomeranz v. Records Access Officer, 65 N.Y.2d 294,
296 (1985) (“[U]nder the Freedom of Information Law all records
of governmental agencies are presumptively available for public
inspection and copying, without regard to the status, need, good
40
faith or purpose of the applicant requesting access.”). Absent the
ability for an agency to use a circumscribed response, any third
party could force the NYPD to reveal whether a particular
individual has been a subject of surveillance or investigation, no
matter what the circumstances. Anyone—a prospective employer,
a potential business partner, a neighbor, or an activist of any
stripe—could submit a FOIL request seeking the disclosure of
records concerning any surveillance or investigation of a specific
individual. Under petitioners’ approach, the NYPD would have no
choice but to confirm or deny the existence of records when
denying such a targeted request—thus revealing whether the
individual has been a subject of investigation. The requesters
could then use, or publicize, that information however they saw
fit, with no protections for individual privacy or safety.
Similar concerns guided a New Jersey appellate court faced
with the situation of a newspaper requesting investigation-related
records relating to a particular person who had never been
arrested or charged with any crime. North Jersey Media Grp., Inc.
v. Bergen Cnty. Prosecutor’s Office, 146 A.3d 656, 660 (N.J. Super.
41
Ct. App. Div. 2016). There, the court concluded that a
circumscribed response was permissible to protect personal
privacy and the confidentiality of law enforcement investigations.
Id. at 667. The court recognized the harm that could result from
forcing a law enforcement agency to reveal whether it had
investigated a specific person without arresting or charging him.
Petitioners never grapple with the harmful consequences
that would attend their proposed categorical rule. But this Court
does not have the luxury of such parochialism. Rather, the Court
construes statutes with an eye toward the broader implications of
decisions, taking into account not only the case before it, but also
the range of cases likely to arise in the future. The harm to
personal privacy and the concerns animating other exemptions
that would ensue from petitioners’ proposed rule is ample cause to
reject their textually unsupported approach to FOIL.
E. FOIL contains ample safeguards to protect
against misuse of a circumscribed response.
Notwithstanding petitioners’ suggestion to the contrary
(App. Br. at 18, 38), there is no reason to think that recognition of
42
an agency’s ability to use a circumscribed response in appropriate
cases will sanction “abuse” or render agencies “free from all
judicial oversight.” Again, it bears repeating that a circumscribed
response is not a standalone FOIL exemption, nor does it relieve
an agency from any of FOIL’s statutory requirements. Rather, it
only provides agencies a means of responding to requests in those
narrow circumstances where a more detailed response would
reveal information within a statutory exemption to disclosure.
There are several safeguards empowering trial courts to
subject agencies’ use of the circumscribed response to appropriate
scrutiny on a case-by-case basis, some embedded in existing FOIL
jurisprudence and others that can be drawn from federal case law.
Many of these features have proven adequate to protect against
abuses in run-of-the-mill FOIL cases, and would apply with equal
force when agencies use a circumscribed response.
• Burden of Proof. First, as would be true in any FOIL
case, an agency seeking to use a circumscribed response
would be “charged with the burden of proving [its]
entitlement to it.” Markowitz, 11 N.Y.3d at 50.
43
• Particularized Justification. Second, an agency could
discharge its burden only by articulating a “particularized
and specific justification” showing that the existence or
non-existence of responsive records “falls squarely within
the ambit” of an exemption. Fink, 47 N.Y.2d at 571.
• Detailed Public Affidavit. Third, to make that showing,
an agency will usually need to submit a “public affidavit
explaining in as much detail as is possible the basis for its
claim that it can be required neither to confirm nor to
deny the existence of the requested records.” Phillippi,
546 F.2d at 1013; see also Wilner, 592 F.3d at 68.
• Adversarial Testing. Fourth, the justification proffered
in a public affidavit would be “subject to testing” by the
opposing party, who would have an opportunity to argue
that the agency’s claims are insufficient to show that
acknowledging the existence of records implicates an
exemption to disclosure. Phillippi, 546 F.2d at 1013.
• Rebuttal Evidence. Fifth, in some cases, a party may be
able to rebut an agency’s proffered justification for using a
44
circumscribed response by producing competent evidence
that either clearly contradicts the agency’s proffered
reasons or shows that the agency is invoking the response
in bad faith. Wilner, 592 F.3d at 68.
• Waiver by Official Acknowledgment. Sixth, where an
agency has itself officially and publicly acknowledged the
existence or non-existence of the specific records at issue,
it would forfeit its ability to use a circumscribed response
in connection with those same records. See id. at 70.
• Doubts Resolved Against Agency. Seventh, to the
extent any doubts remain about whether the existence or
non-existence of responsive records would implicate an
exemption to disclosure, a court would be free to resolve
those doubts “in favor of disclosure.” Id. at 69.
In short, there is no reason to conclude that a circumscribed
response—which affects only the form of an agency’s denial of a
FOIL request in narrow circumstances—would in any way inhibit
people’s ability to access government records to which they are
45
entitled. This approach is perfectly compatible with FOIL’s terms,
the Legislature’s intent, and good sense.
POINT II
THE NYPD PROPERLY PROVIDED A
CIRCUMSCRIBED RESPONSE TO
PETITIONERS’ REQUESTS
This Court should hold that agencies may issue a
circumscribed response—one that neither confirms nor denies the
existence of responsive records—when merely acknowledging the
existence of responsive records would reveal information protected
by one or more of FOIL’s enumerated exemptions. The Court
should also uphold the Appellate Division’s more specific finding
that the NYPD reasonably provided a circumscribed response to
petitioners’ requests for records concerning any counterterrorism
surveillance or investigation of them as individuals or of the
organizations with which they associated.
At issue here are FOIL’s law enforcement and public safety
exemptions. See PUB. OFF. LAW § 87(2)(e), (f). Petitioners do not
genuinely dispute that their requests implicate information that
falls squarely within these exemptions. Instead, they complain
46
about the particular form of the NYPD’s response to their
requests, seeking, in effect, to obtain information through the
backdoor that they concede they cannot obtain through the front.
But the simple truth is that they are not entitled to the
information at all, no matter the portal.
A. Petitioners concede that records responsive
to their requests, to the extent any exist,
would be exempt from disclosure.
The incongruity of petitioners’ position is made all the more
clear by their concession that the court below rightly “recognized
that the records requested in these cases [would be] a subset of
the records” correctly found to be exempt in Matter of Asian
American Legal Defense and Education Fund v. N.Y.C. Police
Department (AALDEF), 125 A.D.3d 531 (1st Dep’t 2015), lv.
denied, 26 N.Y.3d 919 (2016), (App. Br. at 39; see also R. 17). Far
from challenging AALDEF, petitioners praise it, quoting its
holding that the records in that case were exempt and writing that
the court “correctly issued its decision … based on existing FOIL
47
language and principle” (App. Br. at 24) (emphasis added).9
Petitioners argue, instead, that the Appellate Division departed
from AALDEF here, when it should have followed that decision
(id. at 23–26).
Petitioners are right to concede that AALDEF was correctly
decided, but they get the significance of that decision backwards.
There, the Appellate Division (acting through a panel that
included the same justices that decided petitioners’ cases) resolved
a relatively broad FOIL request seeking a range of records about
the NYPD’s counterterrorism operations, including records of
surveillance or investigation of essentially any individual or
organization in New York City’s Muslim communities.10 As the
court found, and petitioners here concede, the NYPD properly
9 Petitioners made a similar concession in their motion for leave to appeal to
this Court, asserting there that AALDEF “correctly applied the FOIL
exemptions to a FOIL document request seeking records similar to those
sought in this case” (Pet’rs’ Mot. for Leave to Appeal at 18).
10 The requesters in AALDEF sought, for example, “[r]ecords relating to
intelligence gathering about mosques, Islamic centers, Muslim community
centers, Muslim student associations, and businesses owned or frequented by
members of the [Muslim, Arab, and South Asian] community (and individuals
associated with these institutions) by the NYPD” (Record on Appeal at 75,
Matter of Asian Am. Legal Def. & Educ. Fund v. New York City Police Dep’t,
Index No. 103802/2012 (1st Dep’t Mar. 19, 2014)).
48
withheld this universe of records under FOIL’s law enforcement
and public safety exemptions. AALDEF, 125 A.D.3d at 531–32.
While the breadth of the request in AALDEF allowed the
NYPD to acknowledge the existence of responsive records without
revealing whether specific individuals or organizations were
subjects of counterterrorism surveillance or investigation, the
same is not true of petitioners’ requests here. In fact, petitioners’
requests exemplify the kind of requests that present an obvious
need for a circumscribed response—those that are targeted at
specific individuals or organizations. Petitioners do not contest
that, when presented with requests in this vein, only a
circumscribed response will enable the NYPD to avoid revealing
whether specific individuals or organizations have been subjects of
surveillance or investigation.
Thus, far from showing error in these cases, the Appellate
Division’s decision in AALDEF helps to define when a
circumscribed response is appropriate. Indeed, the fact that the
NYPD did not use such a response when presented with the
request at issue in that case belies any suggestion that the NYPD
49
employs or would employ such a response abusively. AALDEF also
establishes that the NYPD’s contention that sensitive information
about its ongoing counterterrorism operations is exempt from
disclosure not only can be subjected to appropriate judicial
scrutiny, but actually has been subjected to such scrutiny—and,
by petitioners’ own account, properly scrutinized.
Petitioners’ concession that their requests seek records that,
if they exist, would be a subset of the records properly withheld in
AALDEF dramatically narrows the issues this Court must resolve.
Because petitioners effectively admit that any responsive records
would be exempt from disclosure, they can prevail only if this
Court accepts their premise that FOIL compels agencies to reveal
exempt information when denying requests for indisputably
exempt records. As explained above, that premise is untenable.
B. On their face, petitioners’ requests seek
information protected by FOIL’s law
enforcement and public safety exemptions.
Even if this Court were to dig deeper into the NYPD’s
factual basis for employing a circumscribed response—and
petitioners’ concession obviates the need for doing so—the NYPD’s
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issuance of such a response was plainly appropriate under FOIL’s
law enforcement and public safety exemptions.
The basis for either exemption can be shown by describing
the “generic risks” posed by disclosure. Lesher, 19 N.Y.3d at 67.
The law enforcement exemption, reflects the Legislature’s
common-sense judgment that the law “was not enacted to furnish
the safecracker with the combination to the safe.” Fink, 47 N.Y.2d
at 573. Thus, an agency is permitted to withhold information
“compiled for law enforcement purposes” when its disclosure
would “interfere with law enforcement investigations,” “identify a
confidential source,” “disclose confidential information relating to
a criminal investigation,” or reveal non-routine “criminal
investigative techniques or procedures.” PUB. OFF. LAW §
87(2)(e)(i), (iii)–(iv). Non-routine investigative techniques are
those that, if disclosed, “would give rise to a substantial likelihood
that violators could evade detection by deliberately tailoring their
conduct in anticipation of avenues of inquiry to be pursued by
agency personnel.” Fink, 47 N.Y.2d at 572.
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Under the public safety exemption, an agency may withhold
information when its disclosure could “endanger the life or safety
of any person.” PUB. OFF. LAW § 87(2)(f). For the exemption to
apply, an agency need only demonstrate “a possibility of
endangerment.” Matter of Bellamy v. New York City Police Dep’t,
87 A.D.3d 874, 875 (1st Dep’t 2011), aff’d, 20 N.Y.3d 1028 (2013).
In his affidavits submitted to Supreme Court, Chief Galati
explained at length the harms that would result were the NYPD
forced to confirm or deny that it possessed records regarding
whether a person was under counterterrorism investigation or
surveillance. If the NYPD were compelled to confirm or deny the
existence of responsive records, individuals could “significantly
impair NYPD’s ability to protect public safety” (R. 307–08). This is
because a person who learns that he is under investigation and
surveillance could alter his behavior to evade detection and avoid
contact with other people learned to be under investigation
(R. 308). Confirming or denying that a specific person is under
investigation and surveillance enables someone engaged in
criminal activities could deliberately tailor his conduct to avoid
52
scrutiny. See Fink, 47 N.Y.2d at 572. Likewise, people who learn
they are not under surveillance will feel greater freedom to
continue their illegal activities (R. 308, 319). See Catledge, 323 F.
App’x at 467 (“[B]y analyzing which of their members are
investigated and which are not, terrorist organizations could learn
… how to avoid detection in the future.”).
Releasing even a small amount of information about
investigations can impede their effectiveness. Criminal
organizations, including terrorist groups, are known to carefully
watch what the NYPD says and does and consider the
implications (R. 318).11 Releases of information that may appear
limited on their own provide valuable data for individuals and
organizations determined to engage in illegal acts, particularly
when new information can be aggregated with information
previously disclosed (R. 323–24). Taken together, a broader mosaic
11 While the technological sophistication of terrorist organizations today may
be new, criminal organizations have long sought to take advantage of public
disclosures. See Governor’s Bill Jacket, L. 1977, ch. 933, § 1, Mem. of New
York State Police (July 19, 1977) at 5 (observing that FOIA requests had
been made by “entities identified with organization crime”); Am. Civil
Liberties Union of Michigan v. FBI, 734 F.3d 460, 469 (6th Cir. 2013)
(describing FOIA requests as “one of the favorite ploys of organized crime”).
53
of information can present a picture that allows individuals and
organizations to thwart law enforcement and endanger public
safety. See Wilner, 592 F.3d at 73 (“Minor details of intelligence
information may reveal more information than their apparent
insignificance suggests, because … each detail may aid in piecing
together other bits of information when the individual piece is not
of obvious importance in itself.” (internal quotation marks omitted
and alteration adopted)).
The heightened risk posed by aggregated disclosure is not a
fanciful or even hypothetical concern here, where AALDEF made
clear through its mass “Go FOIL Yourself!” campaign that it
intended to collect and report information revealing the scope of
the NYPD’s surveillance activities (R. 328–30). No matter what
good intentions may have motivated the campaign, AALDEF’s
planned report would have provided a partial roadmap of the
NYPD’s counterterrorism efforts for anyone—regardless of their
intentions—to access.
Petitioners’ argument that their particular requests were
independent of the AALDEF campaign misses the fundamental
54
point: their requests cannot be viewed under the fiction that they
stand alone. As this case illustrates, if this Court adopts
petitioners’ approach to FOIL, agencies will be powerless to stop
coordinated campaigns calculated to generate broad-based
disclosure of information that the Legislature intended to shield
from public disclosure.
C. The NYPD properly used a circumscribed
response to petitioners’ requests specifically.
While petitioners do not contest any of the facts and
conclusions presented in Chief Galati’s affidavits, they do argue
that the affidavits fail to articulate with sufficient specificity why
the NYPD can neither confirm nor deny the existence of
responsive records without causing harm cognizable under a FOIL
exemption (App. Br. at 32–34). This is incorrect. Chief Galati’s
affidavit makes clear that disclosure of whether responsive
documents exist necessarily would reveal whether petitioners had
been under investigation (R. 307)—a conclusion that, in any case,
is compelled as a matter of logic and common sense.
55
Upon receiving petitioners’ requests, if the NYPD had
acknowledged the existence of responsive records, petitioners
would know that they had been subjects of surveillance and
investigation, even if the underlying records themselves were
never disclosed. Likewise, had the NYPD answered that no
responsive records existed, petitioners would know that they had
not been the subjects of surveillance and investigation. In either
event, merely acknowledging whether responsive records existed
would logically reveal information that is exempt from disclosure.
See Hunt, 981 F.2d at 1119.
There is no merit to petitioners’ contention that Chief
Galati’s affidavits were insufficient because they did not contain
specific information about each requester (App. Br. at 34–35). In
the first place, an agency is permitted to assert the risks posed by
disclosure generically. Lesher, 19 N.Y.3d at 67. Chief Galati
articulated those risks at great length (R. 306–27). But more
importantly, it is unclear what specific information petitioners
have in mind that the NYPD could have revealed without also
revealing exempt information. Petitioners’ demand for
56
personalized information is essentially indistinguishable from
their original request for records regarding purported surveillance
and investigation of them. Requiring that this information be
disclosed in a public affidavit supporting a circumscribed response
would defeat the efficacy of the circumscribed response, just as
prohibiting the use of a circumscribed response would, in certain
cases, defeat FOIL’s enumerated exemptions.
There is similarly no merit to petitioners’ charged assertion
that their requests were denied because they are Muslim (App. Br.
at 35–36), a claim they have made repeatedly throughout the
course of this litigation (R. 78, 206, 387, 771, 790). The claim is as
false as it is unsupported, and reflects, if anything, petitioners’
refusal to engage with the actual reasons why a circumscribed
response was logically necessary here to avoid disclosing protected
information. Petitioners’ requests were not denied because
petitioners are Muslim, but rather because they requested records
that would reveal information about the scope of the NYPD’s
surveillance and investigative operations. Anyone who requested
this information would meet with the same response, and
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petitioners have given no reason to believe otherwise. That Chief
Galati’s affidavits were functionally the same for both petitioners
is not a reflection of the fact they are both Muslim. It is, instead, a
reflection of the fact that they requested functionally identical
records that implicated identical law enforcement and public
safety concerns.
At bottom, petitioners apparently fail to understand that the
NYPD must give a circumscribed response to all FOIL requests
where a different response would reveal statutorily exempt
information, or else the circumscribed response would be
worthless. If the NYPD only gave a circumscribed response to
requests for records about individuals who were the subject of
surveillance and investigation, such a response would be just as
revealing as simply acknowledging that responsive records
existed. The personal traits or characteristics of the person
making the request are irrelevant. All that matters is whether the
request itself seeks records that necessarily reveal exempt
information. As explained at length in Chief Galati’s affidavits
and in this brief, the requests here do just that.
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D. The NYPD’s ability to provide a
circumscribed response is not dependent on
its ability to classify documents.
Petitioners also confuse the purpose of a circumscribed
response in their discussion of the NYPD’s lack of classification
authority or ability to claim other federal FOIA exemptions (App.
Br. at 27–32). A circumscribed response is not available only to
protect the “deepest national security secrets” (id. at 29), even if it
may often be used to that end on the federal level. Rather, it is
designed to give effect to FOIL’s enumerated exemptions when a
different response would necessarily reveal exempt information.
Thus, petitioners’ suggestion that the NYPD cannot claim various
federal disclosure exemptions is largely irrelevant because the
NYPD can avail itself of FOIL’s enumerated exemptions. Their
arguments that FOIA exemptions do not apply here are largely
59
beside the point, because FOIL’s law enforcement and public
safety exemptions do.12
If anything, the NYPD’s lack of authority to classify records
underscores how limited the reach of the circumscribed responses
would be under FOIL. As argued by the amici, a potential
downside to recognizing a circumscribed response is that it may
encourage agencies to over-classify documents to promote secrecy
(Amici Br. at 10–11). But where the NYPD and other state
agencies lack the authority to classify records, that concern is
absent. Instead, agencies could only offer a circumscribed response
where a different response would necessarily reveal information
covered by a statutory exemption to disclosure and only by
following the procedures detailed above.
12 That said, petitioners do not explain how state and local agencies would
afford complete protection to classified information shared with them by
federal agencies to advance joint counterterrorism efforts. While records that
have been properly classified under federal law would themselves be exempt
under FOIL, see PUB. OFF. LAW § 87(2)(a), petitioners’ approach to FOIL
would apparently leave no room for a circumscribed response, even when a
different response would reveal properly classified information.
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E. The NYPD has never officially acknowledged
the specific records petitioners seek.
There is also no merit to petitioners’ newly minted claim—
raised by them for the first time in their brief to this Court—that
the NYPD cannot offer a circumscribed response because it has
already officially acknowledged the existence of the specific
records they seek (App. Br. at 37–41). Petitioners are correct that
“[i]f the government has admitted that a specific record exists, a
government agency may not later refuse to disclose whether that
same record exists or not.” Wilner, 592 F.3d at 70. But there are
three criteria that must be established before a court will
recognize prior acknowledgement: “(1) the information requested
must be as specific as the information previously released; (2) the
information requested must match the information previously
disclosed; and (3) the information requested must already have
been made public through an official and documented disclosure.”
Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (quoting Am.
Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 620–21
(D.C. Cir. 2011)). Even if petitioners had preserved their
argument, none of those criteria is met here.
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The specific information petitioners seek—records of the
NYPD’s surveillance or investigation of them personally and the
groups with which they are affiliated—has never been
acknowledged by anyone, let alone the NYPD. “Prior disclosure of
similar information does not suffice; instead, the specific
information sought by the plaintiff must already be in the public
domain by official disclosure.” Wolf v. CIA, 473 F.3d 370, 378 (D.C.
Cir. 2007). Petitioners claim that the records they seek were
acknowledged in the AALDEF litigation, during oral argument
before the Appellate Division in this case, and in a declaration
submitted by Chief Galati in another case (App. Br. at 38–40).
Passing over the fact that petitioners improperly rely on extra-
record materials for the first time before this Court, none of these
purported acknowledgements relates to the specific records
petitioners seek here. Rather, they relate only to the general
activities of the NYPD’s Intelligence Bureau without suggesting
the existence of records directly related to these petitioners in
particular. Because petitioners can only point to the
acknowledgment of the broad strokes of certain activities (which
62
may or may not have concerned them at all), they fail to establish
that the information they requested is only as specific as
information previously released.
Moreover, petitioners cannot show that the information they
requested has already been made public through an official and
documented disclosure. This is, in part, a logical extension of the
fact that no one has ever acknowledged the existence of the
specific records petitioners seek. But even if petitioners were to
find some aspect of media articles purporting to report on the
activities of the Intelligence Bureau concerning them specifically,
that too would be insufficient. To preclude the use of a
circumscribed response, official acknowledgment must come from
the agency itself. Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir.
1999). Judged by that standard, unverified news reports would not
qualify. Because the NYPD has never officially acknowledged the
existence of the specific records petitioners seek, it was free to
provide a circumscribed response to petitioners’ requests.
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F. The NYPD provided a circumscribed
response in good faith.
In the closing pages of their brief, petitioners assert that the
NYPD invoked a circumscribed response in bad faith, apparently
because of the controversy surrounding use of the stop-and-frisk
tactic and alleged surveillance of Muslim communities (App. Br. at
41–42). Their assertion finds no support in the record or the law.
Petitioners’ attempt to smear the NYPD is beside the point
when they do not seriously dispute that the records they request
are exempt from disclosure. After all, petitioners concede that the
NYPD properly withheld the records at issue in AALDEF, and
admit that the records they seek, if they were to exist, would be a
subset of those records. Because of the way petitioners’ requests
were formulated, any response acknowledging whether responsive
records even exist would necessarily reveal protected information.
That the NYPD invoked a circumscribed response rather than
reveal protected information cannot be ascribed to bad faith.
Nonetheless, petitioners claim that the NYPD denied their
requests to avoid embarrassment (App. Br. at 42–43). The claim
ignores the valid reasons for providing a circumscribed response
64
made in this brief, in the various rounds of litigation below, and in
the Appellate Division’s decision affirming the NYPD’s use of a
circumscribed response. The claim also doesn’t make sense on its
own terms. As petitioners recognize, the NYPD has already
acknowledged the existence of the now-disbanded Demographics
Unit, the unit petitioners claim engaged in “spying on the Muslim
community” (App. Br. at 38). Why, after NYPD recognized and
disbanded the unit, would acknowledgment that these two
petitioners in particular were or were not subjects of surveillance
and investigation prove an intolerable level of embarrassment for
the NYPD? Petitioners leave this wholly unexplained.
The more likely—and indeed accurate—explanation is the
one that the NYPD has consistently provided from its rejection of
petitioners’ requests through today. Revealing that particular
individuals are or are not the subjects of surveillance and
investigation would interfere with law enforcement activities and
potentially endanger the life and safety of New Yorkers. Because
of the way petitioners’ requests were formulated, it was impossible
for the NYPD to confirm or deny the existence of responsive
65
records without necessarily revealing whether petitioners were or
were not subjects of surveillance.
To give effect to FOIL’s law enforcement and public safety
exemptions, therefore, the NYPD had to provide a circumscribed
response that neither confirmed nor denied the existence of
responsive records. Such a response is wholly consistent with
FOIL’s statutory language and purpose and is unanimously
accepted at the federal level under the analogous federal statute.
In short, the circumscribed response the NYPD provided here was
properly invoked as a necessary means to protect exempt
information from being revealed. The matter is that simple.
CONCLUSION
The order of the Appellate Division, First Department
should be affirmed.
Dated: New York, NY
May 8, 2017
RICHARD DEARING
DEVIN SLACK
JOHN M OORE
of Counsel
Respectfully submitted,
ZACHARY VV.CARTER
Corporation Counsel
of the City of New York
Attorney for Respondents
By:%~
~HNMO~ -=
Assistant Corporation Counsel
100 Church Street
New York, NY 10007
212-356-0840
jomoore@law.nyc.gov
66
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was prepared using Microsoft
Word 2010, and according to that software, it contains 11,504
words, not including the table of contents, the table of cases and
authorities, the statement of questions presented, this certificate,
and the cover.
67