To Be Argued By:
Omar T. Mohammedi
Time Requested: 30 Minutes
APL-2016-00219
New York County Clerk‟s Index Nos. 13/101559 & 13/101560
Court of Appeals
State of New York
In the Matter of the Application of
TALIB W. ABDUR-RASHID and SAMIR HASHMI,
Petitioners - Appellants,
-against-
NEW YORK CITY POLICE DEPARTMENT, et al.,
Respondents - Respondents.
For a Judgment Pursuant to Article 78 of the New York Civil Practice Laws and Rules
BRIEF FOR PETITIONERS – APPELLANTS
Omar T. Mohammedi, Esq.
Law Firm of Omar T. Mohammedi, LLC
233 Broadway, Suite 801
The Woolworth Building
New York, NY 10279
(212) 725-3846
Attorney for the Petitioners - Appellants
Date Completed: February 20, 2017
ii
TABLE OF CONTENTS
Page
Preliminary Statement……………………………………………….……..1
Question Presented…………………………………………………………7
Statement of Jurisdiction…………………………………………………...8
Statement of the Case……………………………………………………..10
Argument………………………………………………………………….15
POINT 1: THE APPELLATE DIVISION, FIRST DEPARTMENT
ERRED WHEN IT ALLOWED THE NYPD TO INVOKE
THE FEDERAL GLOMAR DOCTRINE IN RESPONSE
TO A NEW YORK STATE FOIL REQUEST FOR
RECORDS …………………………………………………...15
A. Allowing The NYPD To Invoke Glomar In Response To A
New York State FOIL Request Strikes Down Years Of
Precedent And Creates A Void In Existing Law………………..15
B. The Appellate Division, First Department Erred When It
Usurped Legislative Prerogative And Created A New
Exemption In FOIL……………………………………………...18
C. The Appellate Division, First Department Did Not
Support Its Own Precedent In AALDEF……………………........23
POINT II: THE APPLICATION OF THE GLOMAR DOCTRINE
WOULD BE INAPPROPRIATE IN THE PETITIONERS-
APPELLANTS‟ CASE………………………………….........27
A. The NYPD Does Not Possess The Classification Authority……27
B. The Galati Affidavit Fails To Meet The Minimum Standards
For A Public Affidavit Required Under Federal Law To
iii
Justify A Glomar Response………………………………….…32
C. Even A Federal Agency Cannot Claim Glomar After It
Has Already Revealed The Existence Of Documents….………37
D. It Is Bad Faith For The NYPD To Invoke The Glomar
Doctrine In Response To The Petitioners-Appellants‟
FOIL Requests……………………………………….…….…..41
Conclusion…………………………………………………...…….………43
PRINTING SPECIFICATION STATEMENT………………….…………46
iv
TABLE OF AUTHORITIES
PAGE(S)
Cases
Asian Am. Legal Def. & Educ. Fund v. N.Y. City Police Dep't,
41 Misc. 3d 471, 964 N.Y.S.2d 888 (Sup. Ct. 2013) ...................... 5, 25, 38
Asian Am. Legal Def. & Educ. Fund v. N.Y. City Police Dep't ,
125 A.D.3d 531 (2015) ................................................................. 18, 23, 25
Benavides v. DEA,
968 F.2d 1243 (D.C. Cir. 1992) ................................................................ 29
Bright Homes, Inc. v. Wright,
8 N.Y.2d 157, 168 N.E.2d 515 (1960) ...................................................... 19
Capital Newspapers Div. of Hearst Corp. v. Burns,
67 N.Y.2d 562, 496 N.E.2d 665 (1986) .................................................... 35
Ely v. F.B.I.,
781 F.2d 1487 (11th Cir. 1986) ................................................................ 33
Fink v. Lefkowitz,
47 N.Y.2d 567, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (Id., 275) .............. 16
Fitzgibbon v. C.I.A.,
911 F.2d 755 (D.C. Cir. 1990) ............................................................ 37, 38
Floyd v. City of N.Y.,
739 F. Supp. 2d 376 (S.D.N.Y. 2010) ...................................................... 41
Gardels v. C. I. A.,
689 F.2d 1100 (D.C. Cir. 1982) ................................................................ 32
Gould v. N.Y. City Police Dep't,
89 N.Y.2d 267, 675 N.E.2d 808 (1996) .............................................. 14, 16
Hashmi v. N.Y. City Police Dep't,
46 Misc. 3d 712, 998 N.Y.S.2d 596 (Sup. Ct. 2014) ................................ 18
Lame v. U.S. Dep't of Justice,
654 F.2d 917 (3d Cir. 1981) ..................................................................... 33
Larson v. Dep't of State,
565 F.3d 857, 861, 862 (D.C. Cir. 2009) .................................................. 34
Legal Aid Society v. New York City Police Department,
274 AD2d 207 (1st Dep't 2001) ................................................................ 25
M. Farbman & Sons, Inc. v. N.Y. City Health & Hosps. Corp.,
62 N.Y.2d 75, 464 N.E.2d 437 (1984) ................................................. 35,36
v
TABLE OF AUTHORITIES (Cont.)
PAGE(S)
Majewski v. Broadalbin-Perth Cent. Sch. Dist.,
91 N.Y.2d 577, 696 N.E.2d 978 (1998) .................................................... 21
Markowitz v. Serio,
11 N.Y.3d 43, 893 N.E.2d 110 (2008) ...................................................... 15
Matter of Fappiano v. N.Y. City Police Dep't,
95 N.Y.2d 738, 747 N.E.2d 1286 (2001) .................................................. 15
Matter of Hanig v. State Dep't of Motor Vehicles,
79 N.Y.2d 106, 588 N.E.2d 750 (1992) ............................. 13, 15, 16, 22,23
Matter of N.Y. Civil Liberties Union v. City of Schenectady,
2 N.Y.3d 657, 814 N.E.2d 437 (2004) ...................................................... 16
Miller v. Casey,
730 F.2d 773 (D.C. Cir. 1984) .................................................................. 34
Minier v. Cent. Intelligence Agency,
88 F.3d 796 (9th Cir. 1996) ...................................................................... 28
Morley v. CIA,
508 F.3d1108 (D.C. Cir. 2007)…………………………………………..33
N.Y. Times Co. v. Dep't of Justice, No.13-422(L),
2014 WL 1569514 (2d Cir. Apr. 21, 2014) .............................................. 31
Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs
Enforcement Agency,
811 F. Supp. 2d 713 (S.D.N.Y. 2011) ...................................................... 30
Nicholas v. Kahn,
47 N.Y.2d 24, 389 N.E.2d 1086 (1979) .................................................... 19
Oneida Cty. v. Berle,
49 N.Y.2d 515, 404 N.E.2d 133 (1980) .................................................... 19
Payne v. Tennessee,
501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) ........................ 17
People v. Taylor,
9 N.Y.3d 129, 878 N.E.2d 969 (2007) ...................................................... 20
Phillippi v. CIA,
546 F.2d 1009 (D.C. Cir. 1976) ................................................ 1, 28, 32, 35
Raza et al v. City of New York et al,
13 CV 3448 (EDNY)……………………………………………………39
Urban Justice Center v. New York City Police Dep’t,
2010 NY Misc Lexis 4258. ...................................................................... 25
vi
TABLE OF AUTHORITIES (Cont.)
PAGE(S)
Scott, Sardano & Pomeranz v. Records Access Officer of City of Syracuse,
65 N.Y.2d 294, 480 N.E.2d 1071 (1985) .................................................. 36
Thomas v. N.Y. City Dep't of Educ.,
103 A.D.3d 495, 962 N.Y.S.2d 29 (2013) ................................................ 16
Wilner v. Nat'l Sec. Agency,
592 F.3d 60 (2d Cir. 2009) ................................................................ passim
Wolf v. C.I.A.,
473 F.3d 370 (D.C. Cir. 2007) ............................................................ 28, 34
Statutes
5 U.S.C. 552 .................................................................................................. 1
5 USC 552(b)(5) .......................................................................................... 11
5 USC § 552(b) ............................................................................................ 28
50 USC 403-1(i)(1) ...................................................................................... 11
50 USC 403-3(c)(5) ..................................................................................... 11
50 USC 421 ................................................................................................. 11
50 USC § 3024............................................................................................. 29
N.Y. Pub. Off. Law § 87(2) ....................................................... 15, 20, 21, 26
POL § 87 (2)(f) ............................................................................................ 25
POL § 87(2)(e) ....................................................................................... 19, 24
POL § 87(2)(g) ............................................................................................ 11
POL § 89(3) ........................................................................................... 13, 14
POL § 89(4) ................................................................................................. 12
POL § 89(4)(a) ............................................................................................. 12
POL § § 87 - 89 ........................................................................................... 12
POL §89(2) .................................................................................................. 20
POL §89(2)(i) .............................................................................................. 23
POL§ 84 ................................................................................................... 3, 26
POL§ 87(2)(a-g) and 89 (2) ......................................................... 3, 20, 21, 26
POL§ 89(3)(a) .................................................................................... 3, 20, 26
Public Officers Law § 87(2)(e)(iii), (iv) ...................................................... 24
Public Officers Law § 89[4][b] .................................................................... 16
§ 552(c)(2) ............................................................................................. 29, 30
1
PRELIMINARY STATEMENT
This matter arises originally from a decision by the Respondents–
Respondents, the New York Police Department (hereinafter referred to as
“NYPD”) to deny two separate record requests by the Petitioners–Appellants
(Talib W. Abdur-Rashid and Samir Hashmi) pursuant to the New York State
Freedom of Information Law (New York State Public Officer Law (“POL”),
Article 6, Sections 84-90) (hereafter referred to as “FOIL”). It is not merely
the denial of the production of records that is at issue. It is the fact that
Respondents-Respondents have asserted that they cannot admit or deny the
existence of documents responsive to the requests.
This response – commonly referred to as a Glomar response – was
created by the Appellate Division for D.C. Circuit in 1976. See, Phillippi v.
CIA, 546 F.2d 1009 (D.C. Cir. 1976) (Phillipi 1). Phillippi allowed federal
agencies with the ability to classify documents pursuant to executive order
or an act of Congress to respond to federal Freedom of Information Act (5
U.S.C. 552) (hereafter referred to as “FOIA”) requests by neither confirming
nor denying the existence of records when doing so would reveal
information that would otherwise be exempt from disclosure.
The Glomar Doctrine has been in existence for over 42 years at the
time of this writing, yet the Abdur-Rashid and Hashmi cases are the first
2
time that a state or local agency has attempted to invoke the doctrine in
response to a state FOIL request. Further, over that same 42-year period, the
New York State Legislature has amended FOIL at least five times, and at no
time have they chosen to adopt the Glomar Doctrine.1 The New York State
Legislature, through their inaction, has clearly stated their intent not to adopt
the federal Glomar Doctrine.
The Appellate Division, First Department‟s decision seems unsure of
which position to take as regards the application of the Glomar response.
On the one hand, while saying that the Glomar response is applicable to the
Petitioners-Appellants, it also recognizes that Glomar should not apply to
FOIL. (R. 148). The Court appears to side with Respondents-Respondents
that Glomar is consistent with the legislative intent and with the general
purpose and manifest policy underlying FOIL. (R. 146-147). On the other
hand, it proceeds to argue that by its decision, the Court is not suggesting
that any FOIL request for NYPD records would justify a Glomar response.
(R. 148). Further, the Court did not offer any legal basis for its finding,
despite Petitioners-Appellants exhaustive arguments that, unlike some
federal agencies that have the authority to classify documents, the NYPD
1 See Committee on Open Government “40 Years of FOIL and the Committee on Open
Government.” Available here: http://www.dos.ny.gov/coog/pdfs/Timeline2014.pdf. Last
visited February 14, 2017.
3
has no such authority, a fact to which Respondents-Respondents have
admitted. (R. 342 and R. 851-852). If the NYPD has no legal basis to
classify documents, it follows that they have no legal basis to assert Glomar.
In addition, the Court ignored Petitioners-Appellants‟ argument that the
Glomar response is only asserted when it is tethered to any of the
enumerated FOIA exemptions. As explained in this brief and in the record,
the NYPD, in asserting Glomar, tethered its application to FOIA exemptions
and not FOIL. The Appellate Division, First Department incorporates the
Glomar Doctrine, a federally created response under FOIA, into FOIL.
Such a decision undermines several FOIL provisions, including its
specifically defined and narrowly tailored exemptions, which are meant to
protect an agency from having to reveal sensitive documents. (POL§
87(2)(a-g) and 89 (2)). It also undermines the requirement that an agency
certify to the completeness of records provided or to the efforts made to
locate records (POL§ 89(3)(a)). Further, the decision drastically changes the
stated purpose of FOIL, which favors the production of records (POL§ 84).
The Appellate Division, First Department‟s decision has inappropriately
undermined legislative prerogative by creating instead of interpreting the
law.
4
While erroneously permitting the application of Glomar to FOIL, the
Appellate Division, First Department neglected important federal
requirements imposed on federal agencies before they can benefit from the
response that they “cannot confirm or deny” the existence of documents.
For instance, the Appellate Division, First Department erred by allowing the
Respondents-Respondents to invoke the Glomar Doctrine based on the sub-
standard Affidavits of Chief Galati and the non-existent national security
concerns of a city agency, rather than basing its decision on FOIL legislation
and the long standing New York State precedent and legislative intent
regarding FOIL. As argued hereunder, the claims in the Galati Affidavits
were made in bad faith, as Chief Galati had – prior to providing the two
affidavits in issue here – previously filed a Declaration in an unrelated
matter wherein he described the number and type of records gathered and
retained by the unit he commanded.
Assuming, arguendo, that the NYPD is able to invoke the Glomar
Doctrine, which is a drastic expansion not permitted under the narrowly
tailored FOIL exemptions, the Appellate Division, First Department still did
not require even a minimal showing that the use of the doctrine was
required, nor did it address the relevancy of the Glomar response to these
two specific requestors in this instant brief.
5
Finally, further assuming arguendo that the use of the Glomar
Doctrine is applicable to FOIL, as explained in greater detail infra this brief,
the federal Glomar response cannot be asserted when the federal agency has
already admitted the existence of documents. Wilner v. Nat'l Sec. Agency,
592 F.3d 60, 70 (2d Cir. 2009). The NYPD has already admitted the
existence of some of the requested documents and records. It has done so in
Asian Am. Legal Def. & Educ. Fund v. N.Y. City Police Dep't, 41 Misc. 3d
471, 477, 964 N.Y.S.2d 888, 895 (Sup. Ct. 2013), aff'd, 125 A.D.3d 531, 5
N.Y.S.3d 13 (N.Y. App. Div. 2015) (AALDEF) (the Appellate Court, First
Department considered Petitioners-Appellants requested records to be a
subset of the records in AALDEF). The NYPD has also admitted the
existence of requested records in this Appellants-Petitioners' case at the
March 8, 2016 oral argument before the Appellate Division, First
Department. A federal agency‟s acknowledgement of the documents defeats
the application of the Glomar doctrine as a matter of law.
The NYPD has sufficient exemptions from disclosure under FOIL,
and it should comply with the State legislation. If this Court allows the
NYPD to operate outside the New York State FOIL legislation, it will have a
detrimental effect on the legislation. The objective of the New York State
FOIL legislation is to foster “Open Government” while protecting state and
6
city agencies from revealing sensitive information under stipulated and
narrowly tailored exemptions.2 The Appellate Division, First Department
decision permits the NYPD to operate without any oversight either under
FOIL or under the federal law. This Court should reverse the decision of the
Appellate Division, First Department and direct the NYPD to respond to the
Petitioners-Appellants‟ requests for documents in accordance with FOIL.
The FOIL statute is more than adequate to protect the NYPD from being
required to produce sensitive documents.
2 The sufficiency of FOIL legislation was recently confirmed by the Supreme Court of
the State of New York by the decision by Justice Manuel Mendez, where, in an identical
petition as the two in consideration here, he annulled the NYPD‟s FOIL determination
and ordered disclosure of records requested by Black Lives Matters protestors, for an in
camera review. New York State Supreme Court, Matter Index No. 153965/16.
7
QUESTION PRESENTED
Can the NYPD respond to a New York State FOIL request by “neither
confirming nor denying” (a federal Glomar response) the existence of
records? The Appellate Division, First Department determined that it could.
8
STATEMENT OF JURISDICTION
On November 26, 2013, Petitioners-Appellants filed separate CPLR
Article 78 Petitions in the Supreme Court, New York County challenging
the NYPD‟s refusal to respond to their respective FOIL requests. The
NYPD moved to dismiss the Article 78 Petitions by asserting the Glomar
Doctrine in response to FOIL requests for records. (R. 341-343 and R. 850-
852). In conflicting decisions, on September 11, 2014, the Honorable
Alexander W. Hunter, Jr. dismissed Abdur-Rashid‟s Petition (R. 228-233),
and on November 14, 2014, the Honorable Peter H. Moulton denied the
NYPD‟s Motion to Dismiss Hashmi‟s Petition and directed the NYPD to
respond to Hashmi‟s Petition (R. 680-700).
On July 21, 2015, Petitioner Abdur-Rashid appealed Judge Hunter‟s
decision to the Appellate Division, First Department (R. 150-536). On
September 4, 2015, the NYPD appealed Judge Moulton‟s decision in the
Hashmi matter to the same court. (R. 615-840). The parties agreed that the
appeals would be heard together. Oral arguments were heard on March 8,
2016. On June 2, 2016, the Appellate Division, First Department issued a
decision upholding Judge Hunter‟s decision (dismissing the CPLR Article
78 Petition in the Abdur-Rashid matter) and reversing Judge Moulton‟s
decision (directing the NYPD to respond to the Petition in the Hashmi
9
matter), thereby dismissing Hashmi‟s CPLR Article 78 Petition as well (R.
143-149). It is this decision that is the subject of this appeal.
On June 29, 2016, Petitioners-Appellants filed for leave to appeal the
June 2016 decision issued by the First Department. (R. 48-142). On
November 21, 2016, this Court granted the Petitioners-Appellants motion for
leave to appeal. This Court‟s Order granting leave for the Petitioners-
Appellants to appeal is contained in the Record at page 46. (R. 46-47).
10
STATEMENT OF THE CASE
On October 23, 2012, Hashmi, at the time a student at Rutgers
University and the Treasurer of the University‟s Muslim Student Association
(“Rutgers MSA”) and Abdur-Rashid, Imam at the Mosque of Islamic
Brotherhood, each made separate FOIL requests to the NYPD. They asked
for records relating to the NYPD‟s surveillance of themselves and the
organizations to which they belong.
On November 13, 2012, the NYPD provided their first response to the
requests. The NYPD acknowledged receipt of the requests, indicated that
they were investigating, and advised that a determination would be issued
within 20 business days. It was not until June 28, 2013, six months after the
above-referenced determination was due, that the NYPD issued
determinations denying the requests. The reasons for the denial were as
follows:
A lack of certification of the Appellant‟s identities.
Acknowledging the existence of records would
constitute an unwarranted invasion of privacy. The
Appellants‟ failure to consent to the release
records to their attorney. The release would
interfere with law enforcement investigations or
judicial proceedings. The release of records would
identify a confidential source or confidential
11
information. The release of records would reveal
non-routine criminal investigative techniques. The
release of records would endanger the life or safety
of any person. The release of records would
constitute an unwarranted invasion of privacy. The
records are pre-decisional inter-agency or intra-
agency materials and are specifically exempted
from disclosure by state or federal statute. (R. 267-
268 and R. 727-728).
Inexplicably and with the intent to evade its obligation under FOIL,
the NYPD also referenced federal statutes to justify the denial of the
Plaintiffs-Appellants‟ requests when it included the following: FOIA
exemption for inter and intra–agency communication (5 USC 552(b)(5))
(even though they referenced a similar exemption under FOIL (POL §
87(2)(g))); a provision stating that “The Director of National Intelligence
shall protect intelligence sources and methods from unauthorized disclosure”
(50 USC 403-1(i)(1)); and a provision that states that the Office of the
Director of National Intelligence shall have a General Counsel (50 USC 403-
3(c)(5)). More problematic, the NYPD cited to a federal provision outlining
the penalties for disclosure of classified information, which is not available
to the NYPD as they have no legal basis to use it. The NYPD does not have
the ability to classify documents (50 USC 421), which it admitted in its
12
briefs (R. 342 and R. 851-852). The NYPD‟s FOIL response gives the
impression that the NYPD inexplicably believes itself to be governed by
federal law instead of state law.
On July 19, 2013, the Petitioners-Appellants appealed the June 28,
2013 determinations (POL § 89(4)(a)). On August 7, 2013, Jonathan David,
Record Appeals Officer for the NYPD, submitted 4-page responses denying
the Petitioners-Appellants‟ appeals. The stated reasons for the denial
included the Petitioners-Appellants‟ failure to certify their identities or
consent to release of documents to their attorney and the failure to
reasonably describe the records sought. The alleged vagueness of the
request presumably prevented the NYPD from searching for and locating the
requested records, yet the NYPD went on to say that the records would be
exempt under POL § § 87 - 89. (R. 271-274 and R. 732-736). It is not clear
how the NYPD was able to evaluate whether the requested records were
exempt since, according to them, the request was so vague that records could
not be located. In making such a response, the NYPD failed to provide the
detailed explanation it was required to offer when denying access to records
pursuant to POL § 89(4).
The NYPD has the burden to prove how any FOIL exemption applies
to record requests, which necessitates an acknowledgement as to whether or
13
not records exist (POL § 89(3)). The burden to demonstrate that the
requested records fit within an exemption (see, Matter of Hanig v. State
Dep't of Motor Vehicles, 79 N.Y.2d 106, 109, 588 N.E.2d 750 (1992))
cannot be met when, as here, the NYPD merely listed the FOIL provisions
without explanation. (R. 271-274 and R. 732-736).
On November 26, 2013, Petitioners-Appellants commenced Article 78
proceedings seeking judicial review of the NYPD‟s denial of their FOIL
requests. Respondents moved for dismissal of the Petitions in lieu of
responding. Supreme Court, New York County Justice Peter H. Moulton
denied the Motion to Dismiss in a 19-page detailed analysis supporting his
opinion (R. 680-700), and ordered that the Respondents respond to the
Petition. Judge Moulton opined that “[t]he adoption of Glomar would effect
a profound change to a statutory scheme that has been finely calibrated by
the legislature.” (R. 696). He further said “the insertion of the Glomar
doctrine would build an impregnable wall against disclosure.” (R. 696-697).
Judge Moulton found that the “Glomar response virtually stifles an
adversary proceeding.” (R. 697). In a conflicting decision, Justice
Alexander W. Hunter, Jr., in a 5-page decision, dismissed Abdur-Rashid‟s
Petition (R. 228-235). Abdur-Rashid appealed Justice Hunter‟s decision,
and the NYPD appealed Justice Moulton‟s decision to the Appellate
14
Division, First Department. The parties agreed to argue the cases together
since they involved the same issues. The New York Civil Liberties Union
and the Brennan Center for Justice, as well as The Reporters Committee for
Freedom of the Press (representing 20 news organizations) filed Amici
Curiae briefs supporting the Appellants. (R. 537-614).
On June 2, 2016, the Appellate Division, First Department issued an
Order (R. 143-149) dismissing the Article 78 Petitions in both cases, thereby
authorizing state and local agencies to use the Glomar Doctrine in response
to FOIL requests. The decision failed to provide any guidance regarding the
standards to be used in determining whether the doctrine is properly invoked
or the provisions of FOIL rendered superfluous by the decision.
If this Court allows the use of the Glomar Doctrine in these cases, it
will be ignoring years of precedent regarding the narrow application of FOIL
exemptions and the burden of proof regarding whether an exemption applies.
See, Gould v. N.Y. City Police Dep't, 89 N.Y.2d 267, 675 N.E.2d 808
(1996). Furthermore, allowing the use of the Glomar Doctrine in these cases
contradicts FOIL‟s plain language, which requires the agency to certify that
the records provided are accurate or that, after a thorough search, records
could not be found. See, POL§ 89(3). The Petitioners-Appellants request
that this Court reverse the decision of the Appellate Division, First
15
Department and direct the Respondents-Respondents to respond to the
Petitioners-Appellants‟ requests for documents in accordance with FOIL.
ARGUMENT
I. THE APPELLATE DIVISION, FIRST DEPARTMENT ERRED
WHEN IT ALLOWED THE NYPD TO INVOKE THE
FEDERAL GLOMAR DOCTRINE IN RESPONSE TO A NEW
YORK STATE FOIL REQUEST FOR RECORDS
A. Allowing The NYPD To Invoke Glomar In Response To A New
York State FOIL Request Strikes Down Years Of Precedent And
Creates A Void In Existing Law
The purpose of the New York State Public Officers Law, Article 6,
Sections 84-90, also known as the Freedom of Information Law, is to further
governmental transparency and protect the public's right to know.
Accordingly, any FOIL exemptions are interpreted narrowly. See Matter of
Markowitz v. Serio, 11 N.Y.3d 43, 51, 893 N.E.2d 110 (2008).
It is well settled that “[P]ursuant to FOIL, government records are
presumptively available to the public unless they are statutorily exempted by
N.Y. Pub. Off. Law § 87(2)” (citing to Matter of Fappiano v. N.Y. City
Police Dep't, 95 N.Y.2d 738, 746, 747 N.E.2d 1286 (2001)). “Those
exemptions are to be narrowly construed, with the burden resting on the
agency to demonstrate that the requested material indeed qualifies for
exemption” (Matter of Hanig v. State of N.Y. Dept. of Motor Vehs., 79
16
N.Y.2d 106, 109 [1992]).” Thomas v. N.Y. City Dep't of Educ., 103 A.D.3d
495, 496, 962 N.Y.S.2d 29, 31 (2013) (emphasis added).
This Court expressed its general view of the intent of the Freedom of
Information Law in Gould, 89 N.Y.2d 267:
"To ensure maximum access to government records, the 'exemptions
are to be narrowly construed, with the burden resting on the agency to
demonstrate that the requested material indeed qualifies for
exemption.' (Matter of Hanig v. State of New York Dept. of Motor
Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see,
Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly
where the material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld.' (Matter of
Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d
463)" (Id., 275).
FOIL imposes a broad duty of disclosure upon government agencies.
Government records are "presumptively open" to the public, statutory
exemptions to disclosure are "narrowly construed," and the agency must
articulate a "particularized and specific justification" for nondisclosure. See,
Matter of N.Y. Civil Liberties Union v. City of Schenectady, 2 N.Y.3d 657,
661, 814 N.E.2d 437 (2004) (citing Gould). The Appellate Division, First
Department ignored this Court‟s guidance in Gould when it failed to
construe the exemptions narrowly and failed to meet the burden of
demonstrating that the requested documents fall within an exemption.
Instead of following years of precedent, the lower courts completely
17
undermined FOIL and this Court‟s decisions in applying FOIL. The
Appellate Division, First Department inappropriately created new law. The
creation of a new law, as Justice Moulton correctly opined, should have been
left to the state legislature, not to the judiciary. (R. 696). “It is a legislative
function to write a statute that strikes a balance embodying society‟s values”
(R. 700) and not the judiciarys‟. Most importantly, Judge Moulton found
that there was “nothing in the record before the Court that indicated that the
NYPD‟s work has been compromised by its inability to assert a Glomar
response.” He said “[t]o the contrary, case law demonstrates that the NYPD
has been able to protect sensitive information very well within the existing
procedures that FOIL currently provides.” (R. 699).
In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d
720 (1991), the United States Supreme Court stated that “stare decisis is the
preferred course because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of the judicial
process.” In determining that the NYPD may properly invoke a Glomar
Response in reply to a FOIL request, the Appellate Division, First
Department has struck down years of precedent cited throughout this brief
regarding the application of FOIL.
18
The lower Court‟s decision creates more problems than it resolves. It
ignores stare decisis and oversteps the judicial authority by creating
legislation instead of applying it. For these reasons, this Court should
reverse the Appellate Division, First Department‟s June 2, 2016 Decision
and Order.
B. The Appellate Division, First Department Erred When It Usurped
Legislative Prerogative And Created A New Exemption In FOIL
In his decision in the Hashmi case, Justice Moulton, focusing on the
roles of the legislature and the judiciary and the negative impact of allowing
state and local agencies to avail themselves of Glomar, determined that the
Glomar response is not available under FOIL. Justice Moulton in Hashmi
warned against the lack of over-sight and likelihood of abuse (R. 699),
ultimately determining that it is up to the legislature, not the courts, to adopt
the principles of the Glomar Doctrine. (R. 700). Justice Moulton (R. 699)
also pointed out that there is no evidence that the current statutory structure
has hampered the NYPD‟s ability to protect confidential information and
criminal investigations by asserting the FOIL law enforcement exemption.
Hashmi v. N.Y. City Police Dep't, 46 Misc. 3d 712, 724, 998 N.Y.S.2d 596,
604 (Sup. Ct. 2014). This is particularly true in AALDEF (125 A.D.3d 531
(2015)) where the NYPD applied FOIL exemptions to FOIL requests
19
seeking records similar to those sought in this case. The Appellate Division,
First Department in AALDEF determined that the requested records fell
within several exemptions, including the law enforcement exemption (POL
§ 87(2)(e)). The Appellate Division, First Department should have
interpreted Petitioners-Appellants‟ FOIL requests as it did in AALDEF.
Instead, it played the role of the legislator.
Our State Constitution establishes a system in which governmental
powers are distributed among three co-ordinate and co-equal branches.
Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 389 N.E.2d 1086 (1979).
Extended analysis is not needed to detail the dangers of upsetting the
delicate balance of power existing among the three, for history teaches that a
foundation of free government is imperiled when anyone of the co-ordinate
branches absorbs or interferes with another. Oneida Cty. v. Berle, 49
N.Y.2d 515, 404 N.E.2d 133 (1980). “Courts are not supposed to legislate
under the guise of interpretation, and in the long run, it is better to adhere
closely to this principle and leave it to the legislature to correct evils if any
exist.” Bright Homes, Inc. v. Wright, 8 N.Y.2d 157, 162, 168 N.E.2d 515
(1960).
More recently, this Court, in declining to create a new jury instruction
in death penalty cases, stated that “we cannot, however, ourselves craft a
20
new instruction, because to do so would usurp legislative prerogative. We
have the power to eliminate an unconstitutional sentencing procedure, but
we do not have the power to fill the void with a different procedure…”
People v. Taylor, 9 N.Y.3d 129, 131, 878 N.E.2d 969 (2007).
The lower Court has done exactly what this Court refused to do. The
lower Court, by its decision to recognize the Glomar response, added
another provision into FOIL legislation that contradicts the explicit FOIL
exemptions currently in place. The enumerated exemptions under FOIL
require the NYPD to admit the existence of documents even when it does
not have to produce them. (POL §87(2)) (Each agency shall… make
available for public inspection and copying all records, except that the
agency may deny access to records or portions thereof that: [fall under the
listed exemptions (POL §87(2)(a-g) and POL §89(2))]) (Emphasis added).
When faced with a record request, POL §89(3)(a) gives the agency three
options. It can (1) make the record available, (2) deny the request pursuant to
a specified FOIL exemption (POL §87(2)(a-g) §89(2)) (or acknowledge
receipt of the request and advise the requestor of the need for a reasonable
time to either provide the record or deny the request), or (3) certify that it
does not possess such records or that such records cannot be found after
diligent search.
21
The Public Officers Law sections 87(2) and 89(2) already protect
agencies against disclosure of exempt records. None of the enumerated
exemptions created by the legislature provide for a “neither confirm nor
deny” response to a New York State FOIL request. The lower Court
decision to permit the NYPD to state it “cannot confirm or deny” the
existence of documents will undermine FOIL and its goal of transparent
government.
This Court, in Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91
N.Y.2d 577, 696 N.E.2d 978 (1998), stated that “…the clearest indicator of
legislative intent is the statutory text; the starting point in any case of
interpretation must always be the language itself, giving effect to the plain
meaning thereof.” When attempting to determine the intent of the
legislature, courts should never opt for an intent that negates explicit
provisions of the statute. See, Id. at 587 (The general principle that
legislation is to be interpreted so as to give effect to every provision. A
construction that would render a provision superfluous is to be avoided).
Allowing the Appellate Division, First Department‟s decision to stand
will make the FOIL exemptions (POL §87(2)(a-g) §89(2)) and the
certification provision (POL§89(3)(a)) in FOIL superfluous. The
certification provision requires:
22
“ …[T]he entity shall provide a copy of such
record and certify to the correctness of such copy
… or as the case may be, shall certify that it does
not have possession of such record, or that the
record cannot be found after diligent search.”
(POL§89(3)(a)).
Allowing a state or local agency to neither confirm nor deny the
existence of records negates the explicit statutory intent of this provision.
How can an agency certify that it does not have possession of records, as
required, if it is permitted to neither confirm nor deny the existence of
records? This violates the very essence of FOIL.
More importantly, the exemptions themselves and the agency‟s
burden to show that the requested documents fall under the exemptions
become superfluous if state and local agencies are permitted the neither
confirm nor deny the existence of records. See, Hanig, 79. N.Y.2d, 106 at
109. The Appellate Division, First Department, despite recognizing the
Hanig precedent, misinterpreted its holding. The Appellate Division, First
Department stated:
“Although petitioners contend that such a response
is impermissible in the absence of express
statutory authorization, the Glomar doctrine is
“consistent with the legislative intent and with the
general purpose and manifest policy underlying
FOIL” (citing to Matter of Hanig v State of N.Y.
Dept. of Motor Vehs., 79 NY2d 106, 110 [1992]
[internal quotation marks omitted]), since it allows
23
an agency to safeguard information that falls under
a FOIL exemption.” (R. 146-147).
In Hanig, the Department of Motor Vehicles did not assert the Glomar
Doctrine. Rather, it produced the relevant non-exempt records requested
and redacted a portion of the records that were exempt from disclosure under
POL §89(2)(i) (safeguarding information that falls under a FOIL
exemption). The Court in Hanig found that FOIL exemptions are consistent
with the legislative intent and general purpose of FOIL – not the Glomar
Doctrine. The Appellate Division, First Department implied that Hanig
addressed the Glomar response. In Hanig, the Glomar response was not
asserted, and Hanig correctly applied FOIL exemptions, which is what
Petitioners-Appellants are seeking in this case. As argued herein-above, in
addition to misinterpreting Hanig, the lower Court‟s decision has isolated
the basic principles in determining legislative intent and has over-stepped
the boundary between appropriate interpretations of legislation and usurping
the role of the legislature by creating new law.
C. The Appellate Division, First Department Did Not Support Its
Own Precedent In AALDEF
The Appellate Division‟s decision (R. 148) stated that the Petitioners-
Appellants‟ requests are a subset of the requests made in AALDEF, 125
24
A.D.3d 531 (2015). However, the Appellate Division, First Department
failed to follow its own precedent in AALDEF when it allowed the NYPD to
“neither admit nor deny” the existence of records. As it did in its
interpretation of Hanig, the Appellate Division, First Department seemed to
confuse the two standards (FOIL exemptions versus the Glomar response)
when it opined that it already considered documents exempted from
disclosure in AALDEF. It failed to differentiate between the NYPD FOIL
response in the AALDEF case and its response in Petitioners-Appellants‟
cases. In AALDEF, the NYPD turned over non-exempt records. It
acknowledged the existence of other documents but withheld them as
exempted from disclosure pursuant to the law enforcement exemption (POL
§ 87(2)(e)). The NYPD in AALDEF did not invoke the Glomar Doctrine. It
appropriately responded to the AALDEF‟s requests in compliance with the
FOIL requirements.
The lower Court correctly issued its decision in AALDEF based on
existing FOIL language and principle (“…the requested documents are
exempt from disclosure under Public Officers Law § 87(2)(e)(iii), (iv),
commonly known as the “law enforcement privilege,” in that disclosure of
the requested documents would identify confidential sources, confidential
information relating to criminal investigations, and non-routine investigative
25
techniques or procedures”) (Asian Am. Legal Def. & Educ. Fund v. N.Y. City
Police Dep't, 125 A.D.3d 531, 532, 5 N.Y.S.3d 13, 15 (N.Y. App. Div.
2015), leave to appeal denied, 26 N.Y.3d 919, 47 N.E.3d 94 (2016)).
The Appellate Division, First Department in AALDEF went on to say
that “The [lower] court also properly found that the requested disclosure
„could endanger the life or safety of any person.‟” Id. This argument
specifically supports Petitioners-Appellants‟ argument that the Appellate
Court in AALDEF properly applied the exemptions under FOIL where the
NYPD acknowledged the existence of documents but could not produce
them claiming production “could endanger the life or safety of any person”
(POL § 87 (2)(f)). This also supports Judge Moulton‟s opinion in Hashmi
that “case law demonstrates that the NYPD has been able to protect sensitive
information very well within the existing procedures that FOIL currently
provides.” Citing, Matter of Bellamy v. New York City Police Department,
87AD3d 874 (1st Dep't 2011); Matter of Legal Aid Society v. New York City
Police Department, 274 AD2d 207 (1st Dep't 2001); Matter of Asian
American Legal Defense and Education Fund v New York City Police Dep’t,
41 Misc3d 471; Urban Justice Center v. New York City Police Dep’t, 2010
NY Misc. Lexis 4258. (R. 699). The NYPD can and has properly protected
26
sensitive information under the existing FOIL exemptions (POL § 87(2)(a-g)
§ 89(2)) without ever needing to utilize a Glomar response.
The NYPD‟s response in the AALDEF case is completely different
from the manner in which it handled the Petitioners-Appellants‟ requests.
Therefore, the Appellate Division, First Department erred when it opined
that the NYPD claiming Glomar in Petitioners-Appellants cases is similar to
the NYPD‟s invocation of FOIL law enforcement exemption in AALDEF.
FOIL requires the NYPD to search for and acknowledge the existence
of records (POL § 87(2)) even if it does not have to produce them, which is
consistent with the AALDEF ruling. The “cannot confirm or deny” response
under Glomar does not exist in the FOIL. It is not a law enforcement
exemption and is not consistent with the Appellate Division, First
Department‟s own decision in AALDEF. More importantly the NYPD does
not comply with the strict and explicit requirements under FOIL, i.e., that
the public should have access to government records (POL § 84), that the
agency provide records unless they fit within an exemption (POL §87(2) §
89(2)), or that the agency certify that the records provided are accurate or
that they could not locate the requested records (POL §89(3)(a)).
27
II. THE APPLICATION OF THE GLOMAR DOCTRINE
WOULD BE INAPPROPRIATE IN THE PETITIONERS-
APPELLANTS’ CASE
In asserting the Glomar doctrine, the NYPD specifically cited to
FOIA exemptions and attempted to tether Glomar theory to FOIA
exemptions instead of FOIL. (R. 339-343 and R. 848-852). However, even
when attempting to apply the federal FOIA law to the New York State FOIL
statute, the Appellate Division, First Department failed to properly address
the requirements under the Glomar Doctrine. The Appellate Division, First
Department, in addition to striking down long established state precedent in
FOIL and attempting to play the role of the legislature, contradicts the
federal precedent and federal FOIA requirements when considering the use
of the Glomar Doctrine by federal agencies.
A. The NYPD Does Not Possess The Classification Authority
The principle behind the Glomar response is that revealing the very
fact of whether or not the federal government possesses records about a
topic can sometimes reveal protected information, even if the underlying
records would themselves be safe from disclosure under FOIA‟s
exemptions. The Glomar response does not function independently of the
FOIA statute, however: “[I]n order to invoke the Glomar response . . . , an
agency must tether its refusal to one of the nine FOIA exemptions.” Wilner,
28
592 F.3d at 71, (internal quotation marks and citation omitted); accord Wolf
v. C.I.A., 473 F.3d 370, 374 (D.C. Cir. 2007). In other words, “a government
agency may...refuse to confirm or deny the existence of certain records…if
the FOIA exemption would itself preclude the acknowledgment of such
documents.” Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir.
1996) (emphasis added). Absent Glomar theory, 5 USC § 552(b) requires
the federal agency to redact exempt information if it is "reasonably
segregable" and produce the redacted document(s).
Since Phillippi I, 546 f.2d 1009 (1976), federal courts have accepted
the application of the Glomar response under very specific and distinct
exceptions, which the NYPD cannot rely upon: (1) those relating to national
security (justified by Exemptions 1 and 3), (2) those that would result in an
“unwarranted invasion of personal privacy” (pursuant to Exemptions 6 and
7(C)),3 and (3) those entailing the protection of the identities of confidential
3 In the privacy context, the concern is that the government would infringe upon an
individual‟s privacy interest by acknowledging that the government has records about
him or her, as when a request is made to the FBI for investigative records about an
individual. Because it is presumed that an agency like the FBI would hold certain types
of records about an individual only if he or she had been under investigation,
acknowledging whether records exist would compromise the individual‟s privacy interest
by “carry[ing] a stigmatizing connotation.” Office of Information Policy, U.S. Dep‟t of
Justice, OIP Guidance: The Bifurcation Requirement for Privacy “Glomarization,” 17
FOIA UPDATE 2, (Spring 1996) [hereinafter Bifurcation Requirement], available at
http://www.justice.gov/oip/blog/foia-update-oip-guidance-bifurcation-requirement-
privacy-glomarization (Last visited February 17, 2017) (quoting Office of Info Policy,
U.S. Dep‟t of Justice, OIP Guidance: Privacy “Glomarization,” 7 FOIA UPDATE 3, 3
(1986)).
29
informants to federal law enforcement agencies (under § 552(c)(2)).4 FOIA
exemption 1 protects "classified documents designated by „Executive
Order.‟” Municipal governance does not include an analogous category of
documents. FOIA exemption 3 relates to documents “specifically exempted
from disclosure by statute.” FOIA exemption 3 is most often used in
Glomar responses in conjunction with legislation that created the federal
government's national security apparatus. For example, two statutes
frequently invoked in conjunction with exemption 3 in Glomar responses are
the National Security Act of 1947, which exempts from disclosure
“intelligence sources and methods” (50 USC § 3024-1 (i) (1)), and the
Central Intelligence Agency Act of 1949, which requires the CIA director to
protect intelligence sources or methods.
In Petitioners-Appellants‟ case, the NYPD, a city agency, did not and
could not demonstrate how the requested records were a matter of deepest
national security secrets (to qualify under FOIA exemption 1 and 3) (R. 378-
383 and R. 885-890); would result in unwarranted invasion of privacy (to
qualify under FOIA exemption 6 and 7(c)) (R. 928-933); or deal with the
4 Subsection (c)(2) of FOIA provides that requests for certain records that would reveal
the identity of confidential informants to federal law enforcement agencies may be
treated as not subject to disclosure. 5 U.S.C. § 552(c)(2) (2006). This provision has been
interpreted as “provid[ing] express legislative authorization for a Glomar response” in a
narrow set of circumstances. Benavides v. DEA, 968 F.2d 1243, 1246 (D.C. Cir. 1992).
30
identities of confidential informants to federal law enforcement agencies (to
qualify under § 552(c)(2)). All the NYPD could argue was that Petitioners-
Appellants‟ applications should not be looked at in isolation and that they
constituted part of a “mass Freedom of Information Law campaign.” (R.
353, R. 862, and R. 936).
The NYPD concedes that, as a municipal agency, it does not possess
classification authority and therefore cannot rely on FOIA Exemptions 1 and
3 as a basis for nondisclosure under FOIL. (R. 378-383 and R. 885-890).
The NYPD is not the CIA or its equivalent. Congress has not vested the
NYPD with the same “sweeping” powers it has provided to specifically–
enumerated federal agencies via statutes like the National Security Act and
the Central Intelligence Act. (R. 382-383 and R. 890).
In addition, FOIA exemption 7 is not applicable to Petitioners-
Appellants. The NYPD has adequate remedies under FOIL‟s own law
enforcement exemption. Most importantly, just as the federal agencies
cannot not evade or cover up for embarrassment or misconduct, this Court
should not allow the NYPD to do so here. FOIA cannot be used to cover up
embarrassment. Nat'l Day Laborer Org. Network v. U.S. Immigration &
Customs Enforcement Agency, 811 F. Supp. 2d 713, 758 (S.D.N.Y. 2011),
amended on reconsideration (Aug. 8, 2011), (holding that redacted portions
31
were not deliberative or predecisional, but rather more embarrassing for the
agency to disclose, which was not an appropriate reason for withholding
information). It is evident that the NYPD‟s sole purpose in attempting to
avail itself of the FOIA Glomar response is to prevent disclosure of
documents that will shed light on its discriminatory, overreaching, and
baseless surveillance practices against the Muslim community, which would
assuredly be a cause of great shame to the agency. However, as Justice
Moulton in Hashmi correctly held: “[e]ngrafting the Glomar doctrine onto
FOIL would change this balance between the need for disclosure and the
need for secrecy. Secrecy is a necessary tool that can be used legitimately
by government for law enforcement and national security, but also
illegitimately to shield illegal or embarrassing activity from public view.”
(R. 700).
Lastly, even when Glomar is applicable to federal agencies, federal
courts have found that the Glomar response would only be justified in
unusual circumstances and only by a persuasive Affidavit. N.Y. Times Co. v.
Dep't of Justice, No.13-422(L), 2014 WL 1569514 (2d Cir. Apr. 21, 2014).
The NYPD has not met this burden in the case at bar. The NYPD deemed it
not necessary to comply with FOIA and federal law, because as a city
agency, it is not regulated by FOIA or federal law. Yet, it was eager to
32
assert the federal Glomar theory. The lower court has permitted the NYPD
to have its cake and eat it too. (R. 172).
B. The Galati Affidavit Fails To Meet The Minimum Standards For
A Public Affidavit Required Under Federal Law To Justify A
Glomar Response
Under federal law, an agency must file a Public Affidavit justifying
their reliance on Glomar. Phillippi 1, 546 F.2d, at 1013 (1976). (The
agency must provide a Public Affidavit explaining in as much detail as
possible the basis for its claim that it can be required to neither confirm nor
deny the existence of the requested records). The Affidavit must survive the
test of reasonableness, good faith, specificity, and plausibility. Gardels v. C.
I. A., 689 F.2d 1100, 1105 (D.C. Cir. 1982).
The Affidavits of Chief Galati submitted in support of Respondents-
Respondents failed to satisfy the minimal federal standards under the
Glomar Doctrine, as set out in Gardels (reasonableness, good faith,
specificity, and plausibility). Id. In Gardels, the court ultimately
determined that the CIA properly invoked the Glomar Doctrine. It did so
based on the filing of three Affidavits from the agency detailing the reasons
why admitting the existence of records would negatively impact national
security, the filing of a Vaughn Index, and the agency‟s response to two sets
of interrogatories. The Petitioners-Appellants vehemently argue against the
33
adoption of Glomar into state law, especially since state and local agencies
do not have the ability to classify documents pursuant to an act of Congress
or Executive Order. However, even under the federal standard, for reasons
argued below, the Galati Affidavits would be insufficient to satisfy the
Glomar Response.
Mere allusion in the Public Affidavit as to why an agency can neither
confirm nor deny the existence of documents is not sufficient to justify a
Glomar Response. See, Morley v. CIA, 508 F.3d1108 (D.C. Cir. 2007).
Under this federal theory, the federal agency must substantiate its Glomar
Response with reasonably specific details. See, Id. at 1126 and Lame v. U.S.
Dep't of Justice, 654 F.2d 917, 928–929 (3d Cir. 1981) (Both cases
considered the sufficiency of the agency‟s Affidavits in relation to a FOIA
exemption. However, the same standard should apply to Public Affidavits
justifying a Glomar Response). In 1986, the 11th Circuit stated that a failure
to adhere to safeguards “was to give the government an absolute, unchecked
veto over what it would and would not divulge, in clear violation of the
provisions of the statute [FOIA]. It diverted to the agency the court‟s
obligation to decide these questions according to the law.” Ely v. F.B.I., 781
F.2d 1487, 1494 (11th Cir. 1986).
34
The courts also have an obligation in situations where they consider
the application of Glomar to accord substantial weight to the federal
agency's Affidavit concerning the details of the classified status of the
disputed record. Wolf, 473 F.3d, 370. Generally when reviewing such
submissions, courts are required to afford “substantial weight” (Wilner, 592
F.3d at 68 [emphasis added]) to agency‟s Affidavits as long as they contain
“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.”
Larson v. Dep't of State, 565 F.3d 857, 861, 862 (D.C. Cir. 2009) (quoting
Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). The lower court did
not engage in any of these considerations with respect to the Galati
Affidavits in the instant case. In simply accepting the Galati Affidavits to
justify the use of the Glomar Doctrine, without the analysis required by
federal case law discussed above, the Appellate Division, First Department
failed in its obligation, thereby leaving it to the agency to decide questions
of law.
The Galati Affidavits (R. 306-330 and R. 740-766), both sworn to on
February 11, 2014, fail to provide any information specific to these
Petitioners-Appellants. They speak in generalizations that could apply to
35
any request by any individual as long as he or she is a Muslim. The fact that
the Affidavits are identical, except for changes in the names, bolsters the
Petitioners-Appellants‟ argument. To be sufficient, the Galati Affidavits
(which the Appellate Division, First Department likened to a Public
Affidavit) would have had to contain specific information as to each
requester regarding why the acknowledgment of the existence of documents
would hamper the functioning of the NYPD, especially since - as Justice
Moulton correctly held - “case law demonstrates that the NYPD has been
able to protect sensitive information very well within the existing procedures
that FOIL currently provides.” (R. 699). See also, Phillippi 1 546 F.2d at
1013 (1976).
The Appellate Division, First Department not only failed to analyze
the Galati Affidavits fulfilment of federal requirements, but it also allowed
the NYPD to discriminate based on the identity of the requestors in violation
of FOIL. This Court has held that “the status or need of the person seeking
access [to records] is generally of no consequences in construing FOIL and
its exemptions.” Capital Newspapers Div. of Hearst Corp. v. Burns, 67
N.Y.2d 562, 567, 496 N.E.2d 665 (1986). An agency inquiry into or
reliance upon the status and motive of a FOIL applicant would be
administratively infeasible, and its intrusiveness would conflict with the
36
remedial purposes of FOIL. See, M. Farbman & Sons, Inc. v. N.Y. City
Health & Hosps. Corp., 62 N.Y.2d 75, 80, 464 N.E.2d 437 (1984).
“Entitlement to the requested…reports is not contingent upon the showing of
some cognizable interest other than that inhering in being a member of the
public.” Scott, Sardano & Pomeranz v. Records Access Officer of City of
Syracuse, 65 N.Y.2d 294, 297, 480 N.E.2d 1071 (1985).
It is clear from the record in this case, specifically the February 11,
2014 Galati Affidavits (R. 306-330 and R. 740-766), that the NYPD invoked
the Glomar response, which is outside FOIL, specifically because the
Petitioners-Appellants are Muslims. The Affidavits, which as mentioned are
identical in every aspect except for the names, consist entirely of fear
mongering about Muslim terrorists. They contain no specific information
regarding the individual requests made by the Petitioners-Appellants except
for them (Abdur-Rashid and Hashmi) being Muslims. In fact, in their lower
court briefs (R. 353, R. 862, and R. 936), the NYPD argue that the
Petitioners-Appellants‟ requests are part of a larger attempt by the Muslim
community to create a campaign against the NYPD seeking information
following the Associated Press reporting that the NYPD surveilled the
Muslim community based on religion.5
5 AP’s Probe Into NYPD Intelligence Operations, Associated Press, available at
37
C. Even A Federal Agency Cannot Claim Glomar After It Has
Already Revealed The Existence Of Documents
Even under federal law, an agency cannot assert that “it cannot
confirm or deny” the existence of records after it has already acknowledged
their existence. “An agency is therefore precluded from invoking the
Glomar response if the existence or non-existence of the specific records
sought by the FOIA request has been the subject of an official public
acknowledgment. If the government has admitted that the specific records
exist, a government agency may not later refuse to disclose whether that
same record exists or not.” Wilner, 592 F.3d at 70. “When information has
been officially acknowledged, its disclosure may be compelled even over the
http://www.ap.org/Index/AP-In-The-News/NYPD;
Matt Apuzzo & Adam Goldman, With CIA Help, NYPD Moves Covertly in Muslim
Areas, Associated Press, August 23, 2011;
Chris Hawley & Matt Apuzzo, NYPD Infiltration of Colleges Raises Privacy Fears,
Associated Press, October 11, 2011;
Adam Goldman & Matt Apuzzo, With Cameras, Informants, NYPD Eyed Mosques,
Associated Press, February 23, 2012;
Adam Goldman & Matt Apuzzo, Documents Show NY Police Watched Devout Muslims,
Associated Press, September 6, 2011;
Matt Apuzzo & Adam Goldman, Inside the Spy Unit that NYPD Says Doesn’t Exist,
Associated Press, August 31, 2011;
Adam Goldman & Matt Apuzzo, NYPD: Muslim Spying Led to No Leads, Terror Cases,
Associated Press, Aug. 21, 2012.
38
agency‟s otherwise valid exemption claim.” Fitzgibbon v. C.I.A., 911 F.2d
755, 765 (D.C. Cir. 1990).
Under federal law, the NYPD would be prohibited from invoking the
Glomar Doctrine because the agency has already admitted the existence of
documents. Wilner at 70 and Fitzgibbon at 765. At minimum, if the
Appellate Division analyzed the Glomar requirements under the federal
context, it would have deemed the NYPD improperly invoked Glomar even
within the federal analysis. By not doing so, the Appellate Division, First
Department has not only allowed the NYPD to evade compliance with
FOIL‟s strict requirements, but it has permitted the NYPD to claim a federal
theory without having to comply with the federal rules themselves. The
Appellate Division, First Department‟s decision, while it permits the NYPD
to be free from all judicial oversight, does not attempt to analyze the
requirement the NYPD would have to fulfill to benefit from the federal
Glomar case law, even assuming it is applicable.
As argued supra this brief, the NYPD has acknowledged the existence
of records related to their spying on the Muslim community in several
instances. In Asian Am. Legal Def. & Educ. Fund v. New York City Police
Dep’t, the NYPD acknowledged the existence of records but asserted FOIL
39
exemptions and provided non-exempt documents that were responsive to the
request. (41 Misc. 3d 471 [Sup. Ct. 2013]).
Having publicly acknowledged the existence of these documents in
court, the NYPD cannot now avail themselves of the Glomar response. The
lower Court confirmed this fact by stating “the records sought here are
subset of the records found properly exempt under FOIL” [in AALDEF] (R.
148). The NYPD admitted the existence of the requested documents in this
case when it argued the documents are a subsection of the documents in
AALDEF (R. 493-497 and R. 626-627). The Appellate Division, First
Department also recognized the records requested in these cases as subset of
the records requested in AALDEF (R. 148) yet ignored that, in AALDEF, the
NYPD acknowledged the existence of exempt documents.
Further, during the oral argument on March 8, 2016, before the
Appellate Division, First Department, the NYPD again admitted the
existence of documents when counsel stated that documents were produced
in response to another case (Raza et al v. City of New York et al, 13 CV 3448
[EDNY]) (where Plaintiffs claimed constitutional violations against the
NYPD for its illegal surveillance of members of the Muslim community
based on their religion).
40
The third example of the NYPD‟s public acknowledgement of records
that are the subject of the Petitioners-Appellants‟ requests is a recently
discovered Declaration of Thomas Galati, filed in the United States District
Court for the Southern District of New York on or around May 16, 2013
(prior to the Affidavits filed in this matter). In the May 16, 2013
Declaration, Chief Galati described the surveillance activities of the Zone
Assessment Unit (later renamed as “The Intelligence Bureau”) in the
Muslim community, the type of information collected by the unit, the
number of records maintained by the unit, and stated that sample reports
generated by the Zone Assessment Unit had been turned over. 6
The NYPD, and Chief Galati himself, were aware that they had
already acknowledged the existence of these records prior to invoking
6 The pertinent paragraph states “In an effort to resolve the concerns raised by Class
Counsel about the Zone Assessment Unit, I was deposed by Class Counsel in response to
their request to have someone speak about the Zone Assessment Unit and the information
this unit collected. My deposition took place on 28 June 2012. Prior to my deposition, the
NYPD Intelligence Division made available to Class Counsel samples of the reports
generated by the Zone Assessment Unit. The purpose of this production was to allow
Class Counsel to see the type of information collected and retained by the Zone
Assessment Unit.” ¶ 4, May 16, 2013,Galati Declaration in Handschu et al v. Special
Services Division, 71 Civ. 2203 (CSH).
Though filed in May 2013, Appellants do not believe that this Declaration was made
public until January 2016. The declaration is can be found on the NYPD‟s website under
their legal filing, available here:
http://www.nyc.gov/html/nypd/downloads/pdf/pr/declaration of thomas galati with ex
hibit a.pdf. (last visited January 16, 2017).
41
Glomar in this matter. The NYPD filed subsequent identical Affidavits in
Hashmi and Abdur-Rashid on February 11, 2014 to invoke Glomar.
The Appellate Division, First Department, even when attempting to
use the federal law as constructive, fatally failed to require the NYPD to at
least comply with minimal federal requirements when asserting Glomar.
Having publicly declared that the requested records exist, including making
the declaration in open court before the Appellate Division, First Department
at the March 2, 2016 oral arguments, the NYPD should not be allowed to
assert Glomar, even assuming arguendo that this theory exists in FOIL.
D. It Is Bad Faith For The NYPD To Invoke The Glomar Doctrine
In Response To The Petitioners-Appellants‟ FOIL Request
Under federal case law, bad faith and the fact that the Affidavit
contradicts other evidence in the record is sufficient to defeat the Glomar
Doctrine. Wilner, 592 F.3d, at 68. Instances of the NYPD‟s bad faith and
wrongdoing have been prevalent in recent years. As an example, the
NYPD‟s abuse and harassment of African-American and Hispanic residents
through their overuse of stop and frisk was criticized in Floyd v. City of N.Y.,
739 F. Supp. 2d 376 (S.D.N.Y. 2010)Similar to the disgraceful stop and frisk
policies that brought the department much criticism, the NYPD in this case
abused the Muslim community through their excessive and illegal
42
surveillance based on religion. Despite claims in the Galati Affidavits
provided to Petitioners-Appellants that the counterterrorism activities of the
NYPD thwarted fourteen or more terror plots7, Galati himself, in a June 28,
2012 deposition in the Handschu case, stated that the activities of the Zone
Assessment Unit did not result in any prosecution.8 It is discernible from
NYPD‟s actions that disclosing or even admitting to the existence of the
records requested by Mr. Abdur-Rashid and Mr. Hashmi would shed further
light on the NYPD‟s discriminatory and baseless surveillance activities of
the Muslim community at large. These practices, when confirmed, are sure
to prove ignominious to the NYPD. The NYPD is certainly apprehensive of
7 At least one news organization analyzed and challenged statements by Mayor
Bloomberg and Police Commissioner Kelly that the NYPD thwarted 14 terror plots and
credibly called those statements into question by pointing out that the plots were actually
thwarted by other agencies or that the plots were facilitated by and could not have been
accomplished without the assistance of government informants. See:
https://www.propublica.org/article/fact-check-how-the-nypd-overstated-its-counterterrorism-
record. Last visited January 16, 2017.
8 June 28, 2012 Deposition of Thomas Galati in Handschu v. Special Services Division,
71CIV. 2203 (CSH)
Q. If they make an assessment of what's being brought in, warrants, some
action, does that indicate that an investigation has commenced? (96: 16-19)
A. Related to Demographics, I can tell you that information that have come
in has not commenced an investigation. (96: 21-23)
Q. You're saying that based on what has occurred during your tenure, correct?
(96:24-25)
A. Yes. (97:2)
43
the potential embarrassment that disclosure of these records would reveal.
However, as argued supra this brief, courts of law cannot be used to help
conceal embarrassment and protect NYPD‟s bad faith reliance on the
Glomar Doctrine.
Furthermore, Galati‟s May 16, 2013, Declaration filed in the
Handschu case (See fn 6), furnished before the Affidavits in the case at bar,
admitted the existence of documents and described the number and
substance of the documents. Both the Galati deposition and prior
declaration contradict the contents in the February 11, 2014 Affidavits filed
in this case, establishing on-going bad faith on the part of the NYPD for
years. For the foregoing reasons, the Appellate Division, First Department
should have rejected the February 11, 2014 Galati Affidavits for not
fulfilling the federal requirements and should have declared the NYPD‟s
Glomar response both a violation of FOIL and a bad faith attempt at skirting
NYPD‟s obligations under state law.
CONCLUSION
The Appellate Division, First Department erred when it did not direct
the NYPD to comply with FOIL by acknowledging the existence of
documents pursuant to POL§89(3)(a). The Appellate Division, First
Department erred when it did not opine that the Glomar response is not
44
inherent in FOIL. The Appellate Division, First Department erred when it
usurped the role the role of the legislature by granting the NYPD the
opportunity to assert the federal Glomar response to FOIL requests. Glomar
does not exist under FOIL, nor can it be tethered to any FOIL exemption.
Further, the Appellate Division, First Department erred when it did not reject
the federal Glomar standard which contradicts New York State FOIL‟s spirit
of open government and the strict requirements upon agencies to use FOIL
exemptions. The Appellate Division, First Department erred when it did not
at a minimum order an “in camera review” as Judge Moulton
recommended. (R. 689-690).
For the foregoing reasons, the Petitioners-Appellants request that this
Court reverse the Appellate Division, First Department‟s June 2, 2016,
Decision and Order, dismissing the Petitioners-Appellants‟ CPLR Article 78
Petitions. Petitioners-Appellants further request that this Court direct the
NYPD to provide the requested records or meet their burden and establish
that the requested records fall within a FOIL exemption. In the alternative,
Petitioner-Appellants request that NYPD at least produce documents for in
camera review for the judiciary to determine the validity of the NYPD‟s
objections. Petitioners-Appellants request costs and fees.
Dated: New York, New York
February 20, 2017
To: Zachary W. Carter, Esq.,
Jolm Moore, Esq.,
Devin Slack, Esq.,
Respectfully submitt
Omar T. Mohammedi, Esq.,
Elizabeth K. Kimundi, Esq.,
Law Firm ofOmar T. Mohammedi, LLC
233 Broadway, Suite 801
New York, New York, 10279
Tel: (212) 725-3846
Fax: (212) 202-7621
Attorneys for the Petitioners-Appellants
Corporation Counsel of the City ofNew York
100 Church Street, Room 2-121
Ne:w York, New York 10007
Tel: (212) 356-0876
Attorney for Respondents-Respondents
45
46
PRINTING SPECIFICATION STATEMENT
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COURT OF APPEALS OF THE STATE OF NEW YORK
-----------------------------------------------------------------------)(
TALffi W. ABDUR-RASHID and
SAMIR HASH1\.1I,
Petitioners-Appellants, APL -2016-00219
v. Affidavit of Service
NEW YORK CITY POLICE DEP ARTl\.1ENT, et al.,
Respondents-Respondents.
----------------------------------------------------------------------)(
Heela Masood, being duly sworn, deposes and says that she is over eighteen years
of age and is not a party to the action.
That on the 201h day of February, 2017, deponent served a true copy of the
BRIEF FOR PETITIONERS - APPELLANTS, and RECORD ON APPEAL upon
ZACHARY W. CARTER, JOHN MOORE, and DEVIN SLACK,
CORPORATION COUNSEL OF THE CITY OF NEW YORK, I 00 Church Street,
New York, NY 1 0007 via Federal Express.
Sworn to before me this
o'l.o1hday ofFebruary, 2017
ELIZABETH K KJMUNOJ ~
Notary Public, State of New York
No. 02Kl6295507
Qualified In Kings County
Commission Expires Jan. 06, 2a__