To Be Argued By:
Omar T. Mohammedi
Time Requested: 30 Minutes
New York County Clerk's Index Nos. 13/101559 & 13/101560
~ourt of ~ppeal~
State of New York
In the Matter of the Application of
TALIB W. ABDUR-RASHID and SAMIR HASHMI,
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
REPLY BRIEF OF PETITIONERS - APPELLANTS
Omar T. Mohammedi, Esq.
Law Firm of Omar T. Mohammedi, LLC
233 Broadway, Suite 801
The Woolworth Building
New York, NY 10279
Attorney for the Petitioners - Appellants
Date Completed: June 8, 2017
TABLE OF CONTENTS
J>~~I1V1IN~1r ~1LJ\1L~1vf~N1L .................................................... l
~GUM~N1L~ ......................................................................... 5
1LH~ GL01vfi\R ~~J>ON~~ I~ N01L
1\ V 1\ILJ\BL~ UND~R FOa ................................. 5
FOa L~GI~LJ\ 1LIV~ INruN1L .............................. 9
1LO MU~LI1v1~ ................................................ 12
~SPOND~NTS' PRIVJ\C1r ~GUM~NTS
IGNOR~ FOa J>RIV J\C1r ~X~MJ>1LION ................ 14
1LH~ N1rJ>D LJ\CK~ 1L~ 1L1rJ>~~ OF
ffiD~AAL 1\G~NCI~~ 1\LLOWED
1LO J\~S~R1L 1L~ GLOM~ ~~J>ON~~ ............... 16
IN C01v1J> )\RI~ON 1LO 1L~ 1\~IJ\N
1\M~RICJ\N L~GJ\~ D~ffiN~~ 1\ND
~DUCJ\ TION FUND ()\)\LD~F) ~QU~~1L~ .......... 23
OF ~XI~lliNC~ OF ~Q~~lliD DOCUM~N1L~
D~ffii\1LS 1LH~ G~OM~ ~~J>ON~~ ................. 25
R~SJ>OND~N1L~ 1\R~ CIRCUMV~N1LING
COURTS' J\UTHORIT1r .................................... 26
TABLE OF CONTENTS (cont'd)
POINT IX: FOIL LEGISLTAION IS SUFFICIENT
FOR THESE FOIL REQUESTS ........................... 28
CONCLUSION ...................................................................... 30
CERTIFICATE OF COMPLIANCE .............................................. 32
TABLE OF AUTHORITIES
Abdur-Rashid v. N.Y. City Police Dep't,
45 Misc. 3d 888, 992 N.Y.S.2d 870 (Sup. Ct. 2014) .................................. 1
Am. Civil Liberties Union v. Dep 't of,
Def., 389 F. Supp. 2d 547 (S.D.N.Y. 2005) .............................................. 21
Asian Am. Legal Defense & Educ. Fund v. New York City Police Dept.,
125 AD3d 531 [1st Dept. 2015] ........................................................ 3, 7, 23
Fitzgibbons v. CIA,
911 F.2d 755 (D.C. Cir. 1990) ............................................................. 17,25
Gould v. N.Y. City Police Dep 't,
89 N.Y.2d 267, 675 N.E.2d 808 (1996) ................................................ 3, 10
Hanig v. State of New York Dept. of Motor Vehicles,
79 N.Y.2d 106, 580 N.Y.S.2d 715, 588 N.E.2d 750 ........................... 3, 6, 8
Hashmi v. New York City Police Dep't,
46 Misc. 3d 712, 998 N.Y.S.2d 596 (Sup. Ct. 2014) ......................... passim
In Barbar Handshcu et al., v. Special Services Division, et al,
71 Civ. 2203 (CSH) ........................................................ 18,19,20
Judicial Watch, Inc. v. Dep 't of,Def.,
857 F. Supp. 2d 44 (D.C. Cir. 2012) ......................................................... 17
Key v. Hynes,
613 N.Y.S.2d 926, 205 A.D.2d 779 (1994) ............................................... 28
Majewski v. Broadalbin-Perth Cent. Sch. Dist.,
91 N.Y.2d 577, 696 N.E.2d 978 (1998) ............................................... 11,12
TABLE OF AUTHORITIES (cont'd)
Matter of Fappiano v. N.Y. City Police Dep't,
95 N.Y.2d 738, 747 N.E.2d 1286 (2001) .................................................... 5
Millions March NYC, et. al., v. NYPD,
Matter Index No. 100690/17 ................................................. .4, 22
New York Civil Liberties Union v. City of Schenectady,
2 N.Y.3d 657 (2004) .................................................................................. 26
North Jersey Media Grp., Inc. v. Bergen Cnty. Prosecutor's Office,
146 A.3d 656 (N.J. Super. Ct. App. Div. 2016) .................................. 14, 15
People v. Taylor,
9 N.Y.3d 129, 878 N.E.2d 969 (2007) ...................................................... 11
Phillippi v. CIA, (Phillippi I),
546 F.2d 1009, (D.C. Cir. 1976) .......................................................... 16, 17
Rattley v. NYPD,
96 N.Y.2d 873 (2001) ................................................................................ 29
Raza et al v. City of New York et al,
13 CV 3448 [EDNY] ............................................................. 25
Thomas v. N.Y. City Dep 't of Educ.,
103 A.D.3d 495, 962 N.Y.S.2d 29 (2013) ................................................... 6
Wilner v. Nat'l Sec. Agency,
592 F.3d 60 (2d Cir. 2009) ........................................................................ 25
TABLE OF AUTHORITIES (cont'd)
5 u.s.c. § 552(b)(1) ............................................................................... 16, 17
5 u.s.c. § 552(b)(3) ..................................................................................... 16
N.J.S.A. 47: 1A-3 .......................................................................................... 15
Public Officers Law § 84 .......................................................................... 9, 19
Public Officers Law § 87 (2) .................................................................. passim
Public Officers Law §87(2)(a-g) ................................................. 6, 21, 29, 30
Public Officers Law §89(2) .......................................................... 6, 21, 29, 30
Public Officers Law §89(2)(a)(b) ................................................... 4
Public Officers Law§ 89 (3) .................................................................. 28, 29
Public Officers Law §89(3)(a) .................................................................. 6, 10
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")
filed detailed requests for records pertaining to themselves and their respective
organizations 1, the Mosque of Islamic Brotherhood and the Muslim Students
Association at Rutgers University. The New York Police Department (hereinafter
referred to as ''NYPD") denied both requests. In response to Article 78
proceedings, the NYPD invoked the Glomar response, a foreign principle to FOIL.
The Trial Court in Hashmi correctly held that the Glomar response was
inappropriate (Hashmi v. New York City Police Dep't, 46 Misc. 3d 712, 998
N.Y.S.2d 596 (Sup. Ct. 2014)) (R. 681-700), while the Abdur-Rashid Court erred
by accepting the NYPD's Glomar response (Abdur-Rashid v. N.Y. City Police
Dep't, 45 Misc. 3d 888, 992 N.Y.S.2d 870 (Sup. Ct. 2014)) (R. 228-235). The two
cases were appealed. The Appellate Division, First Department, (hereinafter
referred to as "Appellate Division") in a joint decision appeared unsure of which
position to take regarding the application of1plomar but erred by permitting the
1 Petitioners-Appellants requested non-exempt documents and justification for the exempt
documents. SeeR. 259, 269, 721 and 730. Contrary to Respondents' position (NYPD Br. at 2),
Petitioners-Appellants rightfully press the paradox because it matters, and the NYPD should not
be allowed to circumvent laws as and when it suits it, hence a rigid rule is required. This rigid
rule ensures the NYPD and other city agencies follow the legislatures' intent and most
importantly, do not abrogate a court's authority to conduct an in camera review.
NYPD's use of Glomar in response to the FOIL requests in this case. Petitioners-
Appellants appealed the Appellate Division decision. See Brief for Petitioners-
Appellants (hereinafter referred to as "Abdur-Rashid/Hashmi Br.") at 2. The
NYPD served their Respondents' Brief (hereinafter referred to as ''NYPD Br.").
Petitioners-Appellants now serve their reply brief.
FOIL legislation does not include the Glomar response, a fact that now
appears to have become apparent to Respondents. Throughout the NYPD Br.,
Respondents have purposely stayed clear of identifying the Glomar response by
name, choosing rather to pass it off as "circumscribed response," which is still a
Glomar response. See NYPD Br2• NYPD' s tactics are simply aimed at distracting
from their attempts to usurp and have this Court usurp the powers of the legislature
- an issue the Trial Court in Hashmi said "is one better left to the State Legislature,
not to the Judiciary." (R. 696). (emphasis added).
This Court should find that the Appellate Division erred in its decision for
the following reasons. First, Petitioners-Appellants' requests did not seek
counterterrorism material. (See R. 258-259, and 720-721). Second, "case law
2 However, the NYPD's distracting and artful techniques fail. At the Trial Court, the NYPD
boldly used the name Glomar (R. 341-343, 409-412, 851-852, 911-913) and argued that Glomar
is a judicial doctrine (R.424:21-25 and 425:1-14 - June 24, 2015 Oral argument hearing
transcript) and that the Court should defer to NYPD (R. 360-363, 868-872). Before the
Appellate Division, First Department, they started shying off from the name and started passing
it off as a "circumscribed response" inherent in FOIL. Now before this Court, they have pretty
much stayed clear of the name, but for introducing it in connection to case law. See NYPD Br. at
demonstrates that the NYPD has been able to protect sensitive information very
well within the existing procedures that FOIL currently provides." (R. 699)
(emphasis added). Third, Glomar is not among the enumerated responses under
FOIL, and Respondents' argument that it's a "common-sense" and "case specific"
applicable exemption (NYPD Br. at 2) is hyperbolic. Fourth, the Appellate
Division, in allowing the NYPD to assert Glomar to Petitioners-Appellants'
requests, in effect departed from its precedent in Matter of Asian Am. Legal
Defense & Educ. Fund v. New York City Police Dept. (125 AD3d 531, 532 [1st
Dept. 2015], lv denied 26 NY3d 919 ) (AALDEF) (R. 148). The Glomar
response was not used in AALDEF.
Lastly, the Appellate Division decision contradicts this Court's own holding
in Gould v. N.Y. City Police Dep't, 89 N.Y.2d 267, 274-75, 675 N.E.2d 808, 811
( 1996) where this Court held:
"All government records are thus presumptively open for public
inspection and copying unless they fall within one of the
enumerated exemptions of Public Officers Law § 87(2). To
ensure maximum access to government documents, the
"exemptions are to be narrowly construed, with the burden
resting on the agency to demonstrate that the requested material
indeed qualifies for exemption" (citing 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; Gould, 89 N.Y.2d, at 274-75.
The Public Officers Law requires the NYPD to acknowledge the existence
of documents, whether such documents are subject to disclosure or exempt from
disclosure. The burden is upon the NYPD to demonstrate why, if at all, it should
be allowed to assert Glomar here, a burden it cannot overcome. The NYPD cannot
overcome this burden because FOIL has sufficient exemptions from disclosure
(POL§ 87(2), § 89(2)(a)(b)).
The Appellate Division stated that, by its decision, it was not suggesting that
any FOIL request for NYPD records would justify a Glomar response (R. 148).
However, its decision did just that. Its decision emboldened the NYPD to use the
Glomar response to FOIL requests for NYPD records. The NYPD recently used
Glomar in response to FOIL request submitted by members of the Black Lives
Matter movement in Millions March NYC, et. al., v. NYPD, Matter Index No.
100690/17. The Appellate Division's erroneous decision has emboldened the
NYPD to assert the Glomar response whenever citizens of New York request
documents or records relating to infringement of their religious rights or their
political freedom. Thanks to the Appellate Division decision, the NYPD is now
stifling New Yorkers rights to religious practices and political activities under the
First Amendment. The NYPD is freely asserting the Glomar response to avoid the
embarrassment the revelation of their outrageous conduct would bring upon them.
The NYPD's distractive counterterrorism and fear-mongering techniques are a
cloak over their infringement of New Yorkers' First Amendment rights.
If this Court also allows the NYPD to assert the Glomar response to FOIL
request, it will be allowing the NYPD to continue infringing upon New Yorkers'
First Amendment rights with impunity. It will defeat the purpose, the intent, and
existence of FOIL. It will build an impregnable wall against disclosure and
virtually stifle adversarial proceedings. Hashmi, 46 Misc. 3d, at 722-23. (R. 696-
697). Most importantly it will have a detrimental effect on the Court's ability to
fully perform its judicial functions, such as ascertaining the validity of claimed
FOIL exemptions through in camera review (R. 699), which Glomar theory does
not allow (R. 691). This Court should find that the Glomar response is not
applicable to a FOIL request.
THE GLOMAR RESPONSE IS NOT AVAILABLE UNDER FOIL
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 N.Y.2d 106, 109 )." Thomas v. N.Y. City Dep't of Educ.,
103 A.D.3d 495, 496, 962 N.Y.S.2d 29, 31 (2013).
In the case at bar, Petitioners-Appellants submitted FOIL requests (R. 258-
259, and 720-721). Their requests were structured as regular FOIL requests,
requiring FOIL responses pursuant to POL §89(3)(a). Respondents sua sponte
chose to assert the Glomar response to Petitioners-Appellants' request (R. at 339-
343, and 848-852). Respondents now make bold-faced assertions (NYPD Br. at 3)
that the availability of the Glomar response is compatible with FOIL's express
terms but provide no citation to support their statement.
When faced with a request for records, POL §89(3)(a) gives an agency three
options. It can (1) make the records 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 records or deny the request, or (3) certify that it does not possess such
records or that such records cannot be found after diligent search.
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 confrrm nor deny" response to a New York
State FOIL request.
Respondents have resorted to a new diversion (NYPD Br. at 3-4) and are
attempting to incite fear and undermine the judiciary. NYPD Br. at page 4
specifically states "Petitioners would have this Court compel the NYPD to
routinely disclose the identities of subjects of counterterrorism surveillance or
investigation." Petitioners-Appellants are not asking the NYPD to divulge the
identity of undercover officers. There are exemptions under FOIL the NYPD can
use and not have to disclose the identity of undercover officers, if any. (R. 168,
259, 721, and 899). The NYPD invoked these exemptions in Matter of Asian Am.
Legal Defense & Educ. Fund, 125 AD3d 531, 532. Petitioners-Appellants' dispute
(which is the subject of this instant appeal), is Respondents' use of the Glomar
response to a State FOIL request. Such use will have a devastating effect not only
on Petitioners-Appellants' FOIL requests but on New Yorkers' rights under FOIL.
As demonstrated infra Point V, the NYPD has already used the Glomar response
against a legitimate civil rights organization (Million March NYC) following the
Appellate Division's decision. Glomar response is not a "form response" as
Respondents are attempting to define it. (NYPD Br. at 19). As argued in Abdur-
Rashid/Hashmi Br. at 15-18, if this Court allows Glomar response to be asserted
here, it will have detrimental effect on open government, judicial scrutiny, and
New Yorkers' rights, thereby defeating the reason why FOIL was established.
Respondents have not been able to support their frivolous claim that Glomar
is an enumerated FOIL response or an enumerated FOIL exemption, because they
cannot. Pursuant to the Court's holding in Hanig, FOIL "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, 79 N.Y.2d,
at 109. Respondents are asking this Court to view FOIL exemptions expansively,
rather than narrowly as precedent requires. This is exactly what the legislature did
not intend. I d. This Court should find Respondents' position to be untenable. It is
Respondents who are using Glomar as a backdoor to sneak in a foreign theory into
FOIL (NYPD Br. at 45-45).
As argued in Abdur-Rashid/Hashmi Br at 15-17, the Appellate Division
erred when it allowed the NYPD to invoke the federal Glomar doctrine to state
FOIL requests. Petitioners-Appellants respectfully request this Court to find as
Justice Moulton did in Hashmi, that "nothing in the record before the Court . . .
indicates that the NYPD's work has been compromised by its inability to assert a
Glomar response. To 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). As Justice Moulton did, this Court should
also find the creation of a new law [the adoption of Glomar into New York State
FOIL] "is one better left to the state Legislature, not the Judiciary." (R. 696). "It
is a legislative function to write a statute that strikes a balance embodying society's
values [on the need for disclosure and need for secrecy]" (R. 700) and not the
FOIL LEGISLATIVE INTENT
POL § 84 explicitly states "people's right to know the process of
governmental decision-making and to review the documents and statistics leading
to determinations is basic to our society. Access to such information should not be
thwarted by shrouding it with the cloak of secrecy or confidentiality." It then
proceeds to spells out the legislature's intent in its enactment of FOIL, as:
"[ t ]he legislature therefore declares that government is
the public's business and that the public, individually and
collectively and represented by a free press, should have
access to the records of government in accordance with
the provisions of this article. (Open Government) (POL
The legislature then places the burden on all government (state and city) agencies
to make available for public inspection and copying all records, except in the case
of enumerated exemptions. (POL § 87(2)). Nonetheless, the legislature requires
the agency to search for documents and acknowledge their existence. (Abdur-
Rashid/Hashmi Br. at 20).
In the case at bar, Respondents attempt (without any legal basis) to shift
their (agency) burden of proof onto Petitioners-Appellants; this is not only
problematic, but also violates FOIL's requirements. Respondents argue that
Petitioners-Appellants "seek to force the NYPD to deny their requests in a form
that would necessarily reveal that information anyway." (NYPD Br. at 16).
Respondents' flawed argument presents the exact problem FOIL was established to
prevent. The NYPD cannot be allowed to evade its burden under FOIL - to search
and acknowledge the existence or non-existence of the requested documents (POL
§89(3)(a)) - even if it claims that Petitioners-Appellants are "forc[ing]" it to abide
by FOIL by acknowledging it searched for documents, whether they are under
enumerated exemptions or not. Otherwise, the existence of FOIL would be futile.
Respondents give no valid justification for this Court to divert from its
holding in Gould, 89 N.Y.2d, at 274-75 (Disclosure may only be withheld where
requested material falls squarely within the ambit of FOIL exemptions only). They
sua sponte use Glomar without any statutory justification and merely claim that it
is a "straightforward and sensible application of FOIL enumerated exemptions".
(NYPD Br. at 18). Unfortunately, it is not. As argued in the moving brief, none of
FOIL's enumerated exemptions allow for a "neither confirm nor deny" response.
(Abdur-Rashid/Hashmi at 20-21). "[T]he clearest indicator of legislative intent is
the statutory text; the starting point in any case of interpretation must always be the
language itself, gtvmg effect to the plain meamng thereof." Majewski v.
Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 696 N.E.2d 978 (1998). (See
Abdur-Rashid/Hashmi at 21). The New York State legislature has amended FOIL
at least five times since the Glomar response came into existence, and at no time
have they chosen to adopt the Glomar response into FOIL. (Abdur-Rashid/Hashmi
at 1-2). Since the clearest indicator of legislative intent is the statutory text, here it
is very clear that FOIL legislative intent is to not make the Glomar response
available for FOIL requests. As such, Respondents' Glomar-leaning arguments
(NYPD Br. at 19-27) are the ones incompatible with the legislature's judgment.
Respondents again make another flawed argument that has no basis in facts
or law by stating that FOIL allows an agency, when presented with Petitioners-
Appellants' special kind of requests, to assert Glomar (which they claim is a "case-
specific application of the statute's exemption") (NYPD Br. at 19, 21, and 48-49).
There is nothing under FOIL designating the Glomar response as a case-specific
application of FOIL exemptions. Without any statutory basis or legal precedent,
Respondents want to create a "case-specific application" of their own.
In People v. Taylor, 9 N.Y.3d 129, 131, 878 N.E.2d 969 (2007) this Court
stated "we cannot, however, ourselves craft a new instruction, because to do so
would usurp legislative prerogative." This Court's position in People v. Taylor, is
along the same lines as the Hashmi Court's holding that "the decision to adopt the
Glomar doctrine is one better left to the State Legislature, not to the Judiciary."
(R. 696). This Court should find that the Appellate Division erred by accepting the
NYPD's "neither confirm nor deny" response, ~ecause this response prevents the
Court from doing its work. "The insertion of the Glomar doctrine into FOIL . . .
build[s] an impregnable wall against disclosure of any information concerning the
NYPD's anti-terrorism activities." "[T]he decision to approve or deny a Glomar
response is made with very little information and with almost no useful input from
the person or entity seeking the documents. A Glomar response virtually stifles an
adversary proceeding." Hashmi, 46 Misc. 3d, at 722 -723. (R. 696-697).
Respondents' arguments should fail for the simple reason enumerated supra
FOIL's plain language does not call for Glomar response. Majewski, 91 N.Y.2d, at
EQUATING COUNTERTERRORISM TO MUSLIMS
Respondents dedicate a substantial portion of their brief claiming that to
respond to Petitioners-Appellants' requests would compel the NYPD to disclose
identities of subjects of counterterrorism surveillance or investigations. (NYPD
Br. at 3, 8-13). They self-congratulate on their alleged efforts to detect and keep
New York City safe from terrorism (NYPD Br. at 5-7). However, that does not
justify their response to Petitioners-Appellants' FOIL requests, which the
Respondents claim to be "case-specific application."
Respondents' counterterrorism and terrorism arguments (including the
references under the Galati affidavit), as opposed at the Trial Court level (R. 934)
and before the Appellate Department, First Division (R. 206, 531, and 797 -798),
serve no other purpose but to induce fear. As argued in Abdur-Rashid/Hashmi Br
at 36, it is fear brought on by the fact that Petitioners-Appellants are Muslims. The
halls of justice should not be used to perpetuate such stereotyping and
Petitioners-Appellants are law abiding citizens with no criminal records (R.
209, 394 and 902), much less terrorism ties. What the NYPD claims to fear is that
any response other than the Glomar response will reveal whether Petitioners-
Appellants and their respective organizations were the subject of surveillance
(NYPD Br. at 22 and 54-55). This fear is secrecy by another name. Courts have
held that 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." Hashmi, 46 Misc. 3d, at 724. (R. 700).
This Court should find, as the Hashmi Court found, that "[ s ]ince the
September 11 attacks the NYPD has worked tirelessly in protecting New York
City." The "court's decision does not reflect any judgment of the NYPD's work.
The court is instead concerned with oversight of governmental functions as
embodied by FOIL." (R. 700) (emphasis added).
RESPONDENTS' PRIVACY ARGUMENTS IGNORE FOIL PRIVACY
Respondents offer numerous alternative and speculative facts, such as
reference to the New York City Department of Health and Mental Hygiene, Sexual
Health Clinics (NYPD Br. at 36-41), in their attempt to counter Petitioners-
Appellants' Hanig challenge (Abdur-Rashid/Hashmi Br. at 22-23), and allegedly in
support of their privacy argument. Such attenuated theories still obligate
Respondents to acknowledge the existence of documents and use the enumerated
safeguard under FOIL exemptions. The Court in Hashmi already 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." The Court
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).
Respondents' reliance on North Jersey Media Grp., Inc. v. Bergen Cnty.
Prosecutor's Office, 146 A.3d 656 (N.J. Super. Ct. App. Div. 2016) (NYPD Br. at
40-41) as part of their privacy argument fails for the following reasons. Firstly, the
requestor in North Jersey Media Grp, was a third party (Newspaper publisher)
seeking records on law enforcement reports relating to a pastor who had not been
arrested or charged with any crime (emphasis added) (/d.)), unlike the instant case,
where Petitioners-Appellants seek their own records and those of their affiliate
organizations. Secondly, the North Jersey Media Grp case is not brought under
OPRA which has provisions prohibiting the agency (for privacy concerns) from
releasing the names of individuals who were the subject of a criminal investigation
that did not result in a charge or arrest. (N.J.S.A. 47: lA-3) (emphasis added).
The New Jersey legislature, by enacting OPRA, expressed its clear intent to permit
New Jersey agencies to respond in this fashion Thirdly, it fails because OPRA
provisions (N.J.S.A. 47: lA-3) are not Glomar. (R. 522-524, and 800-801). The
Respondents' argument should also fail for the reasons articulated in Judge
Moulton's decision in Hashmi mentioned supra ("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).
THE NYPD LACKS THE TYPES OF SAFEGUARDS AVAILABLE TO
FEDERAL AGENCIES ALLOWED TO ASSERT THE GLOMAR
As argued in Petitioners-Appellants' moving brief, since Phillippi 1,3 federal
courts have accepted Glomar response under very specific and distinct exceptions,
which the NYPD cannot rely upon. (Abdur-Rashid /Hashmi Br. at 28-30).
Glomar is a judicial theory tethered to two main safeguards: (1) Executive Order or
Act of Congress granting classification authority (FOIA exemption 1 and 3), and
(2) express authorization by statute (FOIA Exemption 6 and 7(C)). In this case,
Respondents have inappropriately cited to federal cases allowing Glomar under
Executive Order or Act of Congress, which the NYPD does not possess. (R378-
383 and 886-890).
FOIA Exemption 1 permits the nondisclosure of records that are "(A)
specifically authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(l)
(emphasis added). FOIA Exemption 3 allows nondisclosure of documents
"specifically exempted from disclosure by statute . ... " 5 U.S.C. § 552(b)(3)
(emphasis added). "An agency may invoke Exemption 1 in withholding records
3 Phillippi v. CIA, (Phillippi/), 546 F.2d 1009, (D.C. Cir. 1976).
only if it complies with classification procedures established by the relevant
Executive order and withholds only such material as conforms to the other's
substantive criteria for classification." Judicial Watch, Inc. v. Dep 't of Def, 857 F.
Supp. 2d 44, 55 (D.C. Cir. 2012). Similarly, Exemption 3 is also narrowly applied
pursuant to specific congressional order requiring the federal agency to classify the
documents at issue. Fitzgibbons v. CIA, 911 F.2d 755, 761-62 (D.C. Cir. 1990)
(the congressional intent to withhold is made manifest in the withholding statute
While using cases relevant to FOIA Exemption 1 and 3, Respondents are
unable to comprehend this classification requirement and proffer dubious
classification arguments that the ''NYPD's ability to provide a circumscribed
response is not dependent on its ability to classify documents" (NYPD Br. at 58).
Unfortunately, federal judicial precedent, which is what Respondents seek to
assert, differs from Respondents' position. Glomar is only available under specific
enumerated circumstances, such as to protect our national security secrets. See
Phillippi I, 546 F.2d 1009, at 1017. "[T]he fact that Glomar doctrine has arisen,
and has been shaped, by the federal government's preeminent role in "national
defense [and] foreign policy" (5 U.S.C. § 552(b)(1)) casts doubt on whether a
judge should apply the doctrine to the NYPD." Hashmi 46 Misc. 3d, at 724 (R.
Petitioners-Appellants have extensively argued that Respondent NYPD is a
city law enforcement agency. 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 Central Intelligence Act. (Abdur-Rashid/Hashmi Br. at 30). The
NYPD does not have the safeguards these agencies (who assert Glomar) have.
Respondents' argument that the Handschu guidelines and the Office of
Inspector General serve as an oversight (NYPD Br. at 7 -8) is disingenuous at best.
The Handschu guidelines referenced in the Respondents' brief should be stricken
from the record and not considered by this Court for the following reasons. First,
the Handschu guidelines are not applicable to the case at bar and were not subject
to this litigation and not an issue considered by the lower Court. Second,
Petitioners-Appellants are not litigating the sufficiency of the Handschu guidelines;
hence the same cannot be used against them as an oversight or a safeguard. Third,
the Handschu guidelines do not deal with FOIL. Fourth, the Handschu guidelines
regulate "future surveillance conduct" not past conduct. (See NYPD Br. Exhibit A
at 2). Fifth, the NYPD is using the Handschu Guidelines as a shield4, disguised as
4 On June 1, 2016, the Court (In Barbar Handshcu et al., v. Special Services Division, et al, 71
Civ. 2203 (CSH)) held a second fairness hearing on Handschu guidelines. At the hearing, out of
an abundance of caution, Abdur-Rashid/Hashmi counsel requested a confirmation on the record
from the NYPD that they will not use the proposed Handschu guidelines as a shield.
oversight to allow it to evade its obligation and abuse FOIL's principle of -open
government. (POL §84). Sixth, Handschu Guidelines do not address record
retention, which Petitioners-Appellants are seeking. Seventh, Counsel on behalf of
Petitioners-Appellants submitted written opposition to the proposed guidelines.
Petitioners-Appellants also submitted individual affidavits in opposition to the
proposed Handschu guidelines5• Eighth, the Handschu guidelines are a token to
the NYPD6 and provide no oversight on its use of the Glomar response.
"The first thing is we would like a confirmation that the Handschu
guidelines will not be used as a shield to prevent private persons from
filing litigations or lawsuits against the NYPD." June 1, 2016, Hrg Tr.
The request was motivated by the fact that the NYPD were ultra vires asserting the Handschu
guideline as a shield.
"Your Honor, the reason for this request arises from something that we
mentioned here in court. It arises from the fact that at the moment, the
proposed guidelines, which are yet to be approved by the Court, are
already being used as a defense. They've been used specifically in the
Hassan v. New York City case, which is a federal matter in front of the
United States District Court for the District of New Jersey." June 1, 2016,
"[T]he Hassan plaintiffs are actually not part of the Handschu class at all."
June 1, 2016, Hrg Tr.53:23-24.
5 Pertinent portions of both Abdur-Rashid and Hashmi affidavits stated:
"I submit this affidavit as a member of the class encompassed in the Handschu matter. I am
directly impacted by the NYPD surveillance . . . . As my attorneys explained in this submission,
I am also concerned that the NYPD may use the Guidelines as a shield if I choose to file a
private lawsuit challenging the NYPD's violations of my constitutional rights . . . . The
settlement should also address what will become of the records the NYPD has on individuals
such as me .... I filed a FOIL request, to which they responded by bringing in foreign law to a
state claim, i.e., the Glomar Response, neither confmning nor denying the existence of
documents. The proposed settlement is silent on the records. I believe it should not be.
Individuals like me, want to know what is in those records and want to also know what will
Assuming arguendo that the Handschu guidelines are an oversight (which is
not the case), the present safeguards thereunder cannot fix NYPD 's violations of
FOIL requirements. The same reason the Handschu guidelines cannot fix what the
NYPD did to Petitioners-Appellants (timing), is also why the Office of the
Inspector General cannot be an oversight here. The office was created in 2013,
after the NYPD conduct towards Petitioners-Appellants. The suggested so-called
oversights and safeguards do not eliminate the respondents' obligations under
Respondents' other set of alleged safeguards (NYPD Br. at 42-44) all fail as
well for the following reasons. First, from its enumerated federal safeguards, it is
evident the NYPD is attempting to replace FOIL with Glomar; this Court should
not allow such an abuse. The NYPD, as a city agency governed under FOIL,
cannot meet the burden of proof required to assert the federal Glomar response.
become of those records and we ask this Court to grant us that right. It also concerns me when I
read that a Full Investigation can be opened when "facts or circumstances reasonably indicate
that an unlawful act has been, is being, or will be committed." In my case the NYPD considers
me dangerous person with fear mongering about terrorists activities which I have nothing to do
with except for the fact that I am a Muslim. (In Barbar Handshcu et al., v. Special Services
Division, et al, 71 Civ. 2203 (CSH)) (Abdur-Rashid Aff. '][')[ 28, 32-33, and 35) and (Hashmi Mf.
1125, 29-30, and 32)
6 They propose a Handschu Committee which is made of ten (10) senior commanding members
of the NYPD and only one (1) Civilian Representative. (NYPD Br. Exhibit 1 at 12). It is no
surprise that Respondents consider the Handschu guidelines a sufficient oversight based on the
composition of the Committee - particularly because the Civilian Representative does not have
any independent investigatory power and is a position held at the appointment of the Mayor in
consultation with the Police Commissioner. (NYPD Br. Exhibit 1 at 12)
Glomar is not a "particularized exemption" under FOIL. The Respondents'
assertion of Glomar at the state level curtails the receipt and review of requested
records otherwise discoverable under FOIL. Hence, contrary to the NYPD's
safeguard arguments, there can be no adversarial testing or rebuttal. More
importantly, there will be no judicial review or even in camera review of the
records. The NYPD's suggested safeguards are not warranted. FOIL has
specifically stipulated safeguards and exemptions from disclosure (POL §87(2)(a-
g) §89(2)). In Hashmi, the lower Court already said FOIL exemptions "provide
some modicum of oversight by allowing the requester to formulate arguments in
opposition to a claim of exemption, and by allowing a court to actually view
responsive documents to ensure they fall within an exemption. Hashmi 46 Misc.
3d, at 724 (R. 699) (emphasis added). Respondents are asking this Court to allow
them to evade this oversight for the simple reason that the Appellants-Petitioners
are forcing them to acknowledge the existence of documents. (NYPD Br. at 2, 16,
This Court should find Respondents' proposed safeguards to be self -serving
and an attempt to do what federal courts warned against in Am. Civil Liberties
Union v. Dep't of Def, 389 F. Supp. 2d 547, 562 (S.D.N.Y. 2005), ("The practice
of secrecy . . . makes it difficult to hold executives accountable and compromises
the basics of a free and open democratic society. It also creates a dangerous
tendency to withhold information from those outside the insular group ... ").
Permitting the use of the Glomar response will allow the NYPD to continue
using this theory with impunity against legitimate organizations and individuals,
such as Petitioners-Appellants in this case, for expressing their political views or
practicing their religious rights. As recently as February 2017, the NYPD asserted
Glomar, following the Appellate Division's decision, in response to a FOIL request
submitted by members of Black Lives Matter (Millions March NYC) seeking
information about whether the NYPD is using technology to infringe on the protest
rights of activists. (Millions March NYC, et. al., v. NYPD, Matter Index No.
The NYPD trend, if allowed to continue, will not only infringe upon New
Yorkers' First Amendment rights but will offer no remedy to New Yorkers, and
courts will have no oversight to ascertain the validity of the NYPD actions.
Accepting Respondents' proposed safeguards will do what the Court in Hashmi
warned against that "[ e ]ngrafting the Glomar doctrine onto FOIL would change ...
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. It is a legislative function to write a statute that strikes a
balance embodying society's values." (R. 700).
PETITIONERS-APPELLANTS' REQUESTS IN COMPARISON TO THE
ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
Respondents attempt to marry the AAWEF7 FOIL requests with Petitioners-
Appellants' FOIL requests. (NYPD Br. at 9-10 and 46-49). Respondents then
allude that the NYPD appropriately responded to Petitioners-Appellants' FOIL
requests (NYPD Br. at 10). Both narrations are dubious for the following reasons.
First and foremost, the NYPD never appropriately responded to Petitioners-
Appellants' requests. The NYPD at the administrative level provided "bare
recitation" of statutory exemptions, which Petitioners-Appellants appealed against.
(R. 269-270 and 730-731). Thereafter at the trial court, they asserted Glomar, an
approach that finds no support in FOIL's terms or purpose.
Petitioners-Appellants have argued how their requests are distinct from the
AALDEF requests (R. 528-532 and 797 -800). They have argued how, unlike the
AALDEF requests, they did not ask the NYPD to produce policy guidelines as
relates to surveillance of Muslims in New York City and the surrounding areas.
(R. 529 and 798). Most importantly, Petitioners-Appellants pointed out that
7 Matter of Asian Am. Legal Defense & Educ. Fund, 125 AD3d 531, 532.
despite the AALDEF requests being broader than Petitioners-Appellants',
Respondents did not assert Glomar in AAWEF, that FOIL provided sufficient
exemptions. Petitioners-Appellants have persisted that all they are asking the
Respondents to do is what they did in AAWEF. That is - apply FOIL legislation
in response to Petitioners-Appellants' FOIL requests and produce all non-exempt
documents, and if any exempt documents should exist, then articulate which FOIL
exemption those documents fall under. (R. 529-530 and 798). The Respondents
used Glomar theory instead.
This Court should find that the Appellate Division in its decision, which
appeared unsure of which position to take, erred by not distinguishing between the
NYPD's response in AALDEF which was within FOIL's requirements and its
Glomar response in the case at bar. (R. 148). Had the Appellate Division
distinguished the two responses, it would have asked the NYPD to acknowledge
the existence of the requested documents, produce the non-exempt ones, and assert
any applicable enumerated FOIL exemption to exempt documents should they
exists. Instead, the Appellate Division failed to compel the NYPD to remain
within the confines of state law (FOIL), as it had in AALDEF.
RESPONDENTS' ACKNOWLEDGMENT OF EXISTENCE OF
REQUESTED DOCUMENTS DEFEATS THE GLOMAR RESPONSE
Even under federal law, an agency is 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 v. Nat'l
Sec. Agency, 592 F.3d 60, 70 (2d Cir. 2009). "When information has been
officially acknowledged, its disclosure may be compelled even over the agency's
otherwise valid exemption claim." Fitzgibbon, 911 F .2d, at 7 65.
Throughout this litigation, Respondents have insisted on the position that
Petitioners-Appellants' requests were a subset of the AALDEF documents. They
said it was part of AALDEF's "go FOIL yourself campaign" (NYPD Br. at 9, 12-
13 and 52-54). Therefore, Respondents by this insistence have recognized the
existence of Petitioners-Appellants requested documents.
In addition, at the March 8, 2016 oral arguments, Respondents
independently acknowledged the existence of Petitioners-Appellants requested
documents, when Respondents' counsel said Respondents had produced a subset of
Petitioners-Appellants requested records in an unrelated case (Raza et al v. City of
New York et al, 13 CV 3448 [EDNY]). (Abdur-Rashid/Hashmi at 39).
Respondents by their own admission have conceded to the existence of the
requested records. Respondents' admission defeats their unfounded "good faith"
use of the Glomar response (NYPD Br. at 63). This Court should also find the
NYPD's use of the Glomar response to Petitioners-Appellants' request was done in
bad faith as they have acknowledged the existence of the requested records.
RESPONDENTS ARE CIRCUMVENTING COURTS' AUTHORITY
Pursuant to FOIL, 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. Matter of New York Civil Liberties Union v. City of Schenectady, 2
N.Y.3d 657, 661 (2004) (citing Gould).
However, Respondents (NYPD Br. in general and at 25) are asking this
Court to view FOIL exemptions expansively, rather than narrowly as precedent
requires in an attempt to circumvent the Court's authority. Arguments relating to
"common sense," the citation of inapplicable FOIA decisions, and analogies to
unrelated principles, such as the misplaced attorney-client privilege and the right
against self-incrimination (NYPD Br. at 23), even assuming they are relevant, are
insufficient to overcome the clear intent of FOIL. The attorney work product
doctrine and the Fifth Amendment right against self-incrimination both have bases
under statute, unlike the NYPD's attempt to apply Glomar here, which does not.
The attorney work product comparison is particularly misplaced since attorneys
cannot assert a privilege and escape review as the NYPD is attempting to do here.
Where an attorney asserts the work product privilege, he or she is under the
obligation to produce a privilege log identifying the subject matter of the privilege,
the type of documents, the author, and recipient if applicable for the court to
determine whether or not the privilege claim is valid. Here, the NYPD is trying to
usurp the adversarial process and defeat judicial scrutiny, thereby defeating the
purpose of our established laws under a democratic society. Allowing agencies to
invoke this federal doctrine will foster an environment of secrecy and distrust,
which is the exact opposite of the transparency intended by the legislature in
enacting FOIL. This Court should not permit the NYPD or any other state or local
agency to usurp the role of the legislature and write additional exemptions to
disclosure into FOIL. Hashmi, 46 Misc. 3d, at 722 (R. 696).
Contrary to Respondents' arguments (NYPD Br. at 24), Petitioners-
Appellants are not disputing the "information." Petitioners-Appellants do not have
the "information" to dispute in the first place due to the problematic Glomar
response. What Petitioners-Appellants are disputing is Respondents' Glomar
response, which is not applicable to FOIL requests. The Glomar response
abrogates Petitioners-Appellants' statutory right under FOIL to challenge any
objection to record disclosure. Glomar prevents this Court from exercising its
judicial function since Glomar does not even allow in camera review, as Judge
Moulton recommended (R. 689-690) thereby enabling the NYPD to escape judicial
review. (Abdur-Rashid Br. at 38).
This Court should not allow the NYPD to circumvent the Court's powers. It
should find that the Appellate Division erred when it did not at a minimum order
an "in camera review".
FOIL LEGISLTAION IS SUFFICIENT FOR THESE FOIL REQUESTS
Even though it is well settled that FOIL was modeled after its federal
counterpart FOIA, the two statutes contain differences that are directly relevant to
the issue at bar. In particular unlike FOIA, FOIL requires that an agency,
"... 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." (POL§ 89 (3),
A provision that troubles Respondents. (See NYPD Br. at 28-31). However much
it troubles them, Respondents' position is still wrong. Unlike its federal
counterpart, the New York State Public Officers Law clearly requires that the
agency acknowledge whether or not the records exist. See, Key v. Hynes, 613
N.Y.S.2d 926, 205 A.D.2d 779 (1994) (a certification containing conclusory
allegations that a record could not be found are not sufficient); and Rattley v.
NYPD, 96 N.Y.2d 873,875 (2001) (acknowledging the need for a certification but
stating that the Public Officers Law does not dictate the manner of the
certification). These cases and a plain reading of POL § 89 (3) clearly support the
Petitioners-Appellants' argument that the inclusion of this certification requirement
in FOIL requires agencies to state whether or not they have records in their
Respondents' explanation of the court's holding in Rattley is flawed.
Respondents argue that an agency can certify they searched and could not find the
documents only when the requested documents are "not exempt". (NYPD Br. at
29). This argument is illogical at best. How can an agency know if documents are
exempt or not if they were not found after diligent search? The duty to
acknowledge the documents supports what the legislature intended, whether the
agency asserts exemption or not (Rattley 96 N.Y.2d, at 875). An agency will have
to search and acknowledge the existence of requested documents/records. If these
documents are not found, then the agency is required to certify that, following a
diligent search, it could not find the requested records (POL § 89 (3)). If found,
the agency will have to produce the documents or claim an enumerated FOIL
exemption from disclosure (POL §87(2)(a-g) §89(2)). How can an agency be
required to certify it searched but could not fmd the requested documents and
simultaneously say "we cannot confirm or deny the existence of documents" and
/or acknowledge the existence of documents when available? Respondents'
arguments have no logic in the law or fact. The legislature's intent and the case law
do not support the Respondents' argument.
For the reasons set forth in the opening brief and in this reply brief, this
Court should find the Appellate Division erred and usurped the legislature's
function by allowing the NYPD to assert Glomar to FOIL requests. This Court
should find FOIL exemptions provide adequate safeguards against disclosure (POL
§87(2)(a-g) §89(2)), and Glomar is not among the articulated exemptions.
Petitioners-Appellants further respectfully request this Court compel the
NYPD to respond to their FOIL request and Article 78 Petition. In the alternative,
Petitioners-Appellants request this Court compel an in camera review of the
Dated: New York, NY
June 8, 2017
Omar T. Mohammedi, Esq.
Elizabeth K. Kimundi, Esq.
Law Firm of Omar T. Mohammedi, LLC
233 Broadway, Suite 801
New York, New York, 10279
Tel: (212) 725-3846
Fax: (212) 202-7621
Attorneys for Petitioners-Appellants Talib
W. Abdur-Rashid and Samir Hashim
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was prepared on a computer using Microsoft
Word. A proportionally spaced typeface was used, as follows:
Name oftypeface: Times New Roman
Point Size: 14
Line spacing: Double
The total number of words in the brief, inclusive of point headings and
footnotes and exclusive of pages containing the table of contents, table of
authorities, proof of service, is 6,97 6
Omar T. Mohammedi
COURT OF APPEALS OF THE STATE OF NEW YORK
TALIB W. ABDUR-RASHID and
Petitioners-Appellants, APL -2016-00219
v. Affidavit of Service
NEW YORK CITY POLICE DEPARTMENT, et al.,
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 8th day of June, 2017, deponent served three copies of the
REPLY BRIEF OF PETITIONERS-APPELLANTS, upon ZACHARY W.
CARTER, RICHARD DEARING, DEVIN SLACK, and, JOHN MOORE,
CORPORATION COUNSEL OF THE CITY OF NEW YORK, at 100 Church
Street, New York, NY 10007, via in person delivery.
S~om to before me this
<6 aay of June, 2017
ELIZABETH K KIMUNDI
Notary Public, State of New York
Qualified In Kings County r7
Commission Expires Jan. 06, 2~