APL-2016-00219
SUPREME COURT INDEX NO. 101559/13 & 101560/13
Court of Appeals of the
State of New York
_______________________________
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 Law and Rules
BRIEF OF AMICUS CURIAE THE NEW YORK CIVIL LIBERTIES UNION
IN SUPPORT OF THE PETITIONERS-APPELLANTS
Dated: June 1, 2017
Mariko Hirose
Robert Hodgson
Christopher Dunn
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
cdunn@nyclu.org
Counsel for Amicus Curiae
i
DISCLOSURE STATEMENT
The New York Civil Liberties Union is a non-profit 501(c)(4) organization and is
the New York State affiliate of the American Civil Liberties Union. It has no
subsidiaries or affiliates.
ii
STATUS OF RELATED LITIGATION
The New York Civil Liberties Union Foundation filed Millions March NYC v
N.Y.C. Police Dept., No. 100690/17, which also challenges the NYPD’s invocation
of the Glomar response, on May 23, 2017, in Supreme Court, New York County.
The return date is June 23, 2017.
iii
TABLE OF CONTENTS
PRELIMINARY STATEMENT ............................................................................... 1
STATEMENT OF INTEREST OF AMICUS CURIAE............................................. 3
FACTUAL AND PROCEDURAL BACKGROUND .............................................. 4
ARGUMENT ............................................................................................................. 8
I. THE FIRST DEPARTMENT’S RECOGNITION OF THE GLOMAR
DOCTRINE SIGNFICANTLY UNDERMINES FOIL’S PROMISE OF
TRANSPARENCY AND ACCOUNTABILITY. .......................................... 8
II. IF THE COURT WERE TO RECOGNIZE THE GLOMAR DOCTRINE
UNDER FOIL, IT SHOULD ADOPT ADDITIONAL SAFEGUARDS
BEYOND THOSE PROPOSED BY THE NYPD. .......................................12
CONCLUSION ........................................................................................................22
iv
TABLE OF AUTHORITIES
Cases
Abdur-Rashid v N.Y.C. Police Dept. 45 Misc 3d 888 [2014] ...........................passim
Am. Civ. Liberties Union of New Jersey v Fed. Bur. of Investigation,
733 F3d 526 [3d Cir 2013] ................................................................ 15, 16, 21
Am. Civ. Liberties Union of N. Cal. v U.S. Dept. of Justice,
No. 12-CV-04008-MEJ, 2014 WL 4954277
[ND Cal Sept. 30, 2014] ................................................................................ 21
Appeal docketed, No. 14-17339 [9th Cir Nov. 26, 2014] ............................. 21
Am. Civ. Liberties Union v Cent. Intelligence Agency,
710 F3d 422 [DC Cir 2013] ............................................................... 18, 19, 20
Am. Civ. Liberties Union v Fed. Bur. of Investigation,
429 F Supp 2d 179 [D DC 2006] ............................................................. 17, 18
Am. Civ. Liberties Union v Fed. Bur. of Investigation,
59 F Supp 3d 584 (SD NY 2014) .................................................................... 4
Am. Civ. Liberties Union v Fed. Bur. of Investigation,
No. 12-03728, 2013 WL 3346845 [ND Cal 2013] ........................................ 21
Am. Civ. Liberties Union v U.S. Dept. of Defense,
389 F Supp 2d 547 [SD NY 2005] ................................................................ 11
Am. Civ. Liberties Union v U.S. Dept. of Defense,
752 F Supp 2d 361 (SD NY 2010) .................................................................. 4
Am. Ins. Assn. v Garamendi, 539 US 396 [2003] .................................................... 15
Fink v Lefkowitz, 47 NY2d 567 [1979] .................................................................... 16
v
Florez v Cent. Intelligence Agency, 829 F3d 178 [2d Cir 2016] ....................... 21, 22
Gould v N.Y.C. Police Dept., 89 NY2d 267 [1996] ..................................... 10, 13, 16
Grabell v N.Y.C. Police Dept., 139 AD3d 477 [1st Dept 2016] ................................ 9
Handschu v Special Services Div., No. 71 Civ 2203 [SD NY] ....................... 3, 5, 20
Hashmi v N.Y.C. Police Dept., 46 Misc 3d 712
[Sup Ct, NY County 2014] .................................................................. 7, 14, 15
Hassan v City of New York, 804 F3d 277 [3d Cir 2015] ..................................... 5, 12
Krikorian v Dept. of State, 984 F2d 461 [DC Cir 1993] ................................... 14, 15
Leshner v Hynes, 19 NY3d 57 [2012] ..................................................................... 17
Millions March NYC v N.Y.C. Police Dept., No. 100690/17
[Sup Ct, New York County filed May 23, 2017] ...................................passim
N.Y. Civ. Liberties Union v City of Schenectady,
2 NY3d 657 [2004] .......................................................................................... 4
N.Y. Civ. Liberties Union v Erie County Sheriff’s Off.,
47 Misc 3d 1201[A] [Sup Ct, Erie County Mar. 17, 2015] ......................... 3, 4
N.Y. Civ. Liberties Union v N.Y.C. Police Dept.,
2009 NY Misc LEXIS 2542 [Sup Ct, New York County
June 26, 2009, No 112145/08] ......................................................................... 9
N.Y. Civ. Liberties Union v N.Y.C. Police Dept.,
74 AD3d 632 [1st Dept 2010] ......................................................................... 4
vi
N.Y. Civ. Liberties Union v N.Y.C. Police Dept.,
No. 100788/16 [filed Sup Ct, NY County 2016] ............................................ 3
N.Y. Civ. Liberties Union v City of Saratoga Springs,
87 AD3d 336 [3d Dept 2011] .......................................................................... 4
N.Y. Times Co. v U.S. Dept. of Justice,
756 F3d 100 [2d Cir 2014] .....................................................................passim
Opinion amended on denial of reh, 758 F3d 436 [2d Cir 2014] ................... 18
Supplemented, 762 F3d 233 [2d Cir 2014] .............................................. 18, 19
Natl. Sec. Agency Telecom. Records Litig., 630 F Supp 2d 1092
[ND Cal 2009] ............................................................................................... 15
Raza v City of New York, No. 13 Civ 3448 [ED NY] ............................................ 3, 5
Schulze v Fed. Bur. Of Investigation, No. 05 Civ. 0180,
2010 WL 2902518 [ED Cal July 22, 2010] ................................................... 10
Sennett v Dept. of Justice, 962 F Supp 2d 270 [D DC 1996] .................................. 17
Servicemembers Legal Def. Network v Dept. of Defense,
471 F Supp 2d 78 [D DC 2007] ..................................................................... 17
United States v Adams, 473 F Supp 2d 108 [D Me 2007] ....................................... 15
Voinche v Fed. Bur. of Investigation, 940 F Supp 323 [D DC 1996] ...................... 17
Wilner v Natl. Sec. Agency, 592 F3d 60 [2d Cir 2009] ........................................... 14
Constitutional Provisions, Statutes, and Bills
50 USC § 3024-1[i][1] ............................................................................................. 14
vii
N.Y. Statutes § 73 [McKinney] ......................................................................... 13, 14
Public Officers Law § 87 [2] ..................................................................................... 9
Public Officers Law § 89 [3] [a] ................................................................................ 9
Miscellaneous
Associated Press, Highlights of AP’s Pulitzer Prize-winning
Probe into NYPD Intelligence Operations,
https://www.ap.org/about/awards-and-recognition/highlights-of-aps-
pulitzer-prize-winning-probe-into-nypd-intelligence-operations
(accessed May 23, 2017) ............................................................................. 4, 5
Intelligence Division Report, Deputy Commissioner’s Briefing,
Apr. 25, 2008, http://hosted.ap.org/specials/interactives/documents/
nypd/dci-briefing-04252008.pdf.................................................................... 22
N.Y.C. Dept. of Investigation, Office of the Inspector General for the
NYPD (OIG-NYPD), An Investigation of NYPD’s Compliance
With Rules Governing Investigations of Political Activity 1 (2016),
http://www1.nyc.gov/assets/oignypd/downloads/pdf/oig_
intel_report_823_final_for_release.pdf). ....................................................... 12
N.Y.C. Police Department, Press Release, Remarks of Police
Commissioner Raymond W. Kelly Before ABNY & Council
on Foreign Relations Breakfast, Monday, Sept. 9, 2013,
http://www.nyc.gov/html/nypd/html/pr/pr_2013_09_09_pc_remarks_
before_assn_for_better_ny_council_foreign_relations.shtml ....................... 20
N.Y.C. Police Department, Intelligence Division, Weekly MSA Report, Nov. 22,
2006, http://hosted.ap.org/specials/interactives/documents/
nypd-msa-report.pdf ...................................................................................... 22
Office of Bill de Blasio, Public Advocate for the City of New York,
viii
Breaking Through Bureaucracy: Evaluating Government
Responsiveness to Information Requests in New York City
(Apr. 2013) http://archive.advocate.nyc.gov/foil/report. .............................. 11
Shawn Musgrave, NYPD Social Media Policy Allows Officers to
Create Fake Accounts to Monitor Online Activity,
Muckrock, Feb. 6, 2015, https://www.muckrock.com/
news/archives/2015/feb/06/nypd-social-media-policy-allows-
catfishing-proper-/ ......................................................................................... 10
PRELIMINARY STATEMENT
This is an appeal from the First Department decision that wrote into the
Freedom of Information Law an expansive view of the “Glomar” doctrine—a
judicially crafted federal doctrine of secrecy in which an agency served with a
public records request refuses to confirm or deny the existence of records. For
over forty years, agencies served with FOIL requests for records either produced
responsive records, withheld them under the statutory exemptions, or certified that
the records do not exist. But the NYPD refused to follow these procedures in
responding to FOIL requests from two Muslim community members seeking
records about themselves in the NYPD’s files after they learned that the NYPD had
engaged in widespread, suspicionless surveillance of their communities. Instead,
the NYPD interjected a Glomar response and broadly asserted that the very
existence or non-existence of records in its files about any individual or group,
from any time period, would undermine the law enforcement interests cognized by
the FOIL exemptions. The First Department accepted this claim with minimal
scrutiny.
Amicus curiae the New York Civil Liberties Union, which frequently relies
on FOIL to protect civil rights and civil liberties in New York, including the right
to be free of unwarranted government surveillance, submits this brief to address
two points advanced by the NYPD in this appeal. First, the NYPD wrongly
2
dismisses the concerns that the recognition of Glomar under FOIL would
significantly undermine FOIL’s promise of transparency and accountability. Since
the decision below, the NYCLU has already received a Glomar response from the
NYPD in a FOIL request on behalf of a group of activists who sought the NYPD’s
policies and practices relating to the interference with and surveillance of the right
to protest. This response represents a sea change in FOIL practice and it cloaks the
NYPD in an additional layer of secrecy not contemplated by FOIL’s carefully
calibrated legislative scheme. Left unchecked, the Glomar doctrine can be and will
be abused to strip FOIL of its effectiveness.
Second, the NYPD proposes safeguards for limiting the Glomar doctrine,
but those are insufficient to prevent the complete erosion of FOIL should this
Court decide that FOIL permits a Glomar response. Specifically, in addition to the
NYPD’s proposals, this Court should require trial courts evaluating a Glomar
response to employ a heightened presumption against the response, to reject
blanket justifications, to apply a broader version of the official acknowledgment
waiver, and to scrutinize the response in light of all evidence of relevant public
information. Because the First Department failed to follow any of these safeguards
in accepting the NYPD’s far-reaching claim to secrecy in this case, the Court
should vacate the decision and remand for further analysis even if it were to
3
recognize that Glomar responses may be available under FOIL in unusual
circumstances.
STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus curiae the NYCLU, the New York State affiliate of the American
Civil Liberties Union, is a non-profit, non-partisan organization with over 160,000
members and supporters. The NYCLU is committed to the defense and protection
of civil rights and civil liberties, including the right to be free of unwarranted
government surveillance and unjustified police actions. The NYCLU Foundation
litigated Raza v City of New York (No. 13 Civ 3448 [ED NY]), the constitutional
challenge to the NYPD’s suspicionless surveillance of mosques and Muslim
communities, and Handschu v Special Services Div. (No. 71 Civ 2203 [SD NY]),
the constitutional challenge to the NYPD’s surveillance of communities based on
political affiliations.
The NYCLU seeks to participate as amicus curiae in this case because FOIL
is an important tool for advancing the NYCLU’s work, especially to promote
public understanding of and dialogue on police practices. The NYCLU frequently
litigates under FOIL to compel government agencies to comply with their
obligations to produce records.1 Attorneys from the NYCLU and the ACLU have
1 See e.g. N.Y. Civ. Liberties Union v N.Y.C. Police Dept., No. 100788/16 (filed Sup Ct, NY
County 2016) (pending challenge to NYPD’s refusal to disclose purchasing records related to
“Stingray” cell phone surveillance equipment); N.Y. Civ. Liberties Union v Erie County Sheriff’s
4
also litigated Glomar challenges under the Freedom of Information Act,2 and the
NYCLU Foundation currently represents the activist group Millions March NYC
and its organizers in an Article 78 action to enforce a FOIL request for policies and
practices relating to protest surveillance and interference (see Millions March NYC
v N.Y.C. Police Dept., No. 100690/17 [Sup Ct, New York County filed May 23,
2017]). As such, the NYCLU understands well how the Glomar doctrine has
undermined FOIA and how it would likely have a similar effect on FOIL by
encouraging government secrecy and cutting off public debate.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the NYPD’s extensive, suspicionless surveillance of
the Muslim community in the New York City area, which was the subject of a
series of Pulitzer-winning Associated Press articles (see e.g. Highlights of AP’s
Pulitzer Prize-winning Probe into NYPD Intelligence Operations, Associated
Off., 47 Misc 3d 1201(A) (Sup Ct, Erie County Mar. 17, 2015) (granting request for records
related to the Sheriff Office’s acquisition and use of “Stingray” devices); N.Y. Civ. Liberties
Union v City of Saratoga Springs, 87 AD3d 336 (3d Dept 2011) (granting fees in a case seeking
records on the Saratgoa Police Department’s use of tasers); N. Y. Civ. Liberties Union v N.Y.C.
Police Dept., 74 AD3d 632 (1st Dept 2010) (granting request for records identifying the race of
persons shot at but not hit by NYPD officers during a certain range of years); N. Y. Civ. Liberties
Union v City of Schenectady, 2 NY3d 657 (2004) (reversing the lower court’s denial of a FOIL
request for incident reports pertaining to use of force by police officers).
2 See e.g. Am. Civ. Liberties Union v Fed. Bur. of Investigation, 59 F Supp 3d 584 (SDNY 2014)
(seeking records, through a lawsuit filed by ACLU and NYCLU lawyers, relating to the federal
government’s bulk collection of any information, not just telephony metadata); Am. Civ.
Liberties Union v U.S. Dept. of Defense, 752 F Supp 2d 361 (SDNY 2010) (seeking records,
through a lawsuit filed by ACLU and NYCLU lawyers, relating to the federal government’s
detention and treatment of prisoners at an internment facility in Afghanistan).
5
Press) 3 and later of multiple lawsuits (see Hassan v City of New York, 804 F3d
277, 307 [3d Cir 2015]; Raza v City of New York, No. 13 Civ 3448 [ED NY];
Handschu v Special Services Division, No. 71 Civ 2203 [SD NY]). After reading
the Associated Press articles and seeing that the organizations that they belong to
had been subjected to surveillance, appellants Samir Hashmi and Imam Talib W.
Abdur-Rashid filed FOIL requests seeking various categories of records relating to
the NYPD’s surveillance and investigation of them (FOIL request, Oct. 23, 2012,
R. 258-60; aff of Abdur-Rashid ¶ 13, R. 404; verified petition of Samir Hashmi ¶¶
12-21, R. 707-11).4
3 Available at https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-
winning-probe-into-nypd-intelligence-operations (accessed May 23, 2017).
4 Specifically, petitioner Samir Hashmi requested the following records:
(1) All records related to any investigation of [petitioner], between 2006–2012, including
the results of those investigations; (2) All records related to [petitioner] relied upon by the
NYPD that led to any report being filed; (3) All records related to the surveillance of
[petitioner] by the NYPD; (4) All records related and relied upon on the surveillance of
[petitioner] used by the NYPD; (5) All directives and/or memoranda sent or received by
the NYPD related to surveillance of [petitioner] from 2006–2012; (6) All directives
and/or memoranda sent or received by the NYPD related to surveillance of the Rutgers
Muslim Student Associations from 2006–2012; and (7) All directives and/or memoranda
sent or received by the NYPD related to the surveillance of [petitioner], as Treasurer for
Rutgers Muslim Student Association from 2006–2009.
(FOIL Request, Oct. 23, 2012, R. 720-21).
Petitioner Imam Talib W. Abdur-Rashid requested the following records:
(1) All records related to any investigation of [petitioner] between 2006-2012, including
the results of these investigations; (2) All records related to [petitioner] relied upon by the
NYPD that led to any report being filed; (3) All records related to the surveillance of
[petitioner] by NYPD; (4) All records related and relied upon on the surveillance of
[petitioner] used by the NYPD; (5) All directives and/or memoranda sent or received by
the NYDP related to surveillance of [petitioner] from 2006-2012; (6) All records related
to any investigation of [petitioner] in relation to his activities within the African
American Community, between 2006-2012, including the results of these investigations;
(7) All records related to any investigation of [petitioner] in relation to his civil rights
6
In response to these requests and the lawsuits filed to enforce them, the
NYPD invoked the Glomar doctrine for the first time in the history of FOIL
litigation. The NYPD argued that it could neither confirm nor deny the existence
of records relating to the surveillance or investigation of any individuals,
regardless of the individuals involved or the time frame or the context of the
requests, because doing so would undermine its work and law enforcement
interests (see aff of Thomas Galati ¶¶ 44-51, R. 324-27 [asserting, in the affidavit
of Thomas Galati in Abdur-Rashid’s case, that responding to the FOIL request
would require the NYPD to reveal “strands of law enforcement sensitive
information” by confirming “whether petitioner or the groups and organizations
with which he is affiliated are or had ever been the subject of an NYPD
investigation or had been reported on within the context of an interaction with a
subject of an investigation,” that the FOIL request cannot be viewed in isolation,
activities, between 2006-2012, including the results of those investigations; (8) All
records related to any investigation of [petitioner] in relation to his activities as Amir of
the Harlem Shura, between 2006-2012, including the results of those investigations; (9)
All records related to any investigation of [petitioner] in relation to his activities as Imam
of the Mosque of Islamic Brotherhood . . . between 2006-2012, including the results of
those investigations; (10) All records related to any investigation of the Mosque of
Islamic Brotherhood . . . between 2006-2012, including the results of those
investigations; (11) All records related to the Mosque of Islamic Brotherhood . . . relied
upon by the NYPD that led to any report being filed; (12) All records related to the
surveillance of the Mosque of Islamic Brotherhood . . . by NYPD; (13) All records
related and relied upon on the surveillance of the Mosque of Islamic Brotherhood . . .
used by the NYPD; (14) All records related to any investigation of the activities of the
Mosque of Islamic Brotherhood . . . between 2006-2012, including the results of those
investigations; (15) All directives and/or memoranda sent or received by the NYPD
related to surveillance of the Mosque of Islamic Brotherhood . . . from 2006-2012.
(FOIL Request, Oct. 23, 2012, R. 258-60).
7
and that secrecy unlimited in time is appropriate for these types of requests]; aff of
Thomas Galati ¶¶ 39-49, R. 758-61 [making the same arguments in an affidavit
also authored by Galati in Hashmi’s case]). The trial court in Imam Abdur-
Rashid’s case accepted the response (see Abdur-Rashid v N.Y.C. Police Dept., 45
Misc 3d 888, 889-95 [Sup Ct, NY County 2014], R. 20-24), whereas the court in
Hashmi’s case rejected the availability of a Glomar response under FOIL (see
Hashmi v N.Y.C. Police Dept. 46 Misc 3d 712, 722-25 [Sup Ct, NY County 2014],
R. 41-45).
On the consolidated appeal, the First Department sided with the Abdur-
Rashid court and held that agencies may assert the Glomar doctrine under FOIL
(Abdur-Rashid v N.Y.C. Police Dept., 140 AD 3d 419, 420 [1st Dept 2016], R. 15-
16). While warning that the decision “do[es] not suggest that any FOIL request for
NYPD records would justify a Glomar response” (id. at 421, R. 17), the court
provided little guidance for curbing Glomar responses in future cases aside from
requiring that agencies bear the burden of justifying the response (id., R. 17-18).
The court summarily accepted the Glomar invocation in this case without parsing
each of the requests and explaining how the NYPD has met its heavy burden to
justify a Glomar response for each of the requests (see id. at 420-21, R. 16-18).
8
ARGUMENT
I. THE FIRST DEPARTMENT’S RECOGNITION OF THE GLOMAR
DOCTRINE SIGNFICANTLY UNDERMINES FOIL’S PROMISE OF
TRANSPARENCY AND ACCOUNTABILITY.
In urging affirmance of the First Department decision, the NYPD insists that
“there is no reason to think” that the Glomar doctrine would undermine FOIL’s
purpose or effectiveness (brief for respondents at 41-42).5 Not only are there
reasons to think and predict that it would, there is evidence that it already has. The
NYPD has already employed the holding below in a far-reaching manner to deny a
FOIL request by the activist group Millions March NYC and its organizers for the
NYPD’s policies and practices relating to the interference with and the surveillance
of communications of protestors and activists (see petition, Millions March NYC v
N.Y.C. Police Dept., No. 100690/17, filed May 23, 2017).6
The NYPD’s Glomar responses in the Millions March NYC case and this
case represent a sea change in FOIL practice. For forty years, FOIL has been
interpreted, consistent with its text, to mandate that agencies either produce
5 See brief for respondents at 41-42 (“[T]here is no reason to think that recognition of an
agency’s ability to use a circumscribed [Glomar] response in appropriate cases will sanction
‘abuse’ or render agencies ‘free from all judicial oversight’”); id. at 3 (arguing that the response
is compatible with FOIL’s text and “effectuates the statutory intent”).
6 Available at
https://www.nyclu.org/sites/default/files/field_documents/millions_march_complaint.pdf (last
updated May 23, 2017). The request sought policies and practice documents relating to
interference with the use of cell phones by protestors, monitoring of their social media accounts,
and surveillance of other protest and organizing activities (see petition ¶ 21).
9
records, withhold “records or portions thereof” under one of the statutory
exemptions (Public Officers Law § 87 [2]), or, upon request, certify that requested
records do not exist or cannot be found after a diligent search (id. § 89 [3] [a]).
The NYPD itself complied with this procedure in the past in responding to FOIL
requests that, like the Millions March NYC request, sought records relating to its
surveillance policies and practices (see e.g. Grabell v N.Y.C. Police Dept., 139
AD3d 477, 479 [1st Dept 2016] [affirming a lower court decision compelling the
NYPD to release certain records relating to x-ray vans while permitting NYPD to
withhold certain other records]; N.Y. Civ. Liberties Union v N.Y.C. Police Dept.,
2009 NY Misc LEXIS 2542, at *3 [Sup Ct, NY County June 26, 2009, No
112145/08] [requiring the NYPD to provide certain records relating to video
surveillance in Lower Manhattan for in camera review]; NYCLU, Automatic
License Plate Readers [providing certain records relating to automatic license plate
readers];7 NYCLU, Stingrays [providing certain records relating to cell phone
surveillance equipment and stating that certain records do not exist]8). Even more
7 See Letter from New York Civil Liberties Union to New York Police Dept. (Jan. 7, 2014),
available at
https://www.nyclu.org/sites/default/files/20140107_NYCLU_ALPR_FOILRequest.pdf (accessed
May 23, 2017); Letter from Richard Mantellino, Records Access Officer, New York Police Dept.
(Apr. 17, 2014), available at
https://www.nyclu.org/sites/default/files/20140417_NYPDDenial_NYCLUFOILRequest.pdf
(accessed May 23, 2017).
8 See Letter from New York Civil Liberties Union to New York Police Dept. (Apr. 13, 2015),
available at
https://nyclu.org/sites/default/files/20150413_FOIL_request_NYPD_stingrays_web.pdf
10
tellingly, the NYPD appears to have previously disclosed under FOIL its policy on
social media surveillance9—a document directly responsive to one of Millions
March NYC’s requests (request 3[b], petition ¶ 21, Millions March NYC, No.
100690/17 [seeking “[p]olicies or guidelines relating to the . . . monitoring [of
social media accounts of protestors and protest groups]”]). Yet after the First
Department decision in this case, the NYPD has claimed that it cannot even
confirm or deny the existence of that policy document.
The “Glomarization” of FOIL unleashed by the First Department will
inevitably undermine FOIL’s statutory purpose to “promote open government and
public accountability” (Gould v N.Y.C. Police Dept., 89 NY2d 267, 274 [1996]).
Glomar is “the functional equivalent of a non-response and represents the most
extreme departure from the policy purpose . . . to inform and promote transparency
in governmental affairs” (Schulze v Fed. Bur. of Investigation, No. 05 Civ. 0180,
2010 WL 2902518, at *20 [ED Cal July 22, 2010]). It results in excessive secrecy,
inadequate court oversight, and unjustified obstacles to transparency, as the amici
curiae of media organizations explain (see brief for Reporters Committee for
(accessed May 23, 2017); Letter from Richard Mantellino, Records Access Officer, New York
Police Dept. (Oct. 13, 2015), available at
https://nyclu.org/sites/default/files/20151030_FOIL_response_NYPD_stingrays_web.pdf
(accessed May 23, 2017).
9 See Shawn Musgrave, NYPD Social Media Policy Allows Officers to Create Fake Accounts to
Monitor Online Activity, Muckrock, Feb. 6, 2015, available at
https://www.muckrock.com/news/archives/2015/feb/06/nypd-social-media-policy-allows-
catfishing-proper-/.
11
Freedom of the Press et al. as Amici Curiae Supporting Appellant, Abdur Rashid v
N.Y.C. Police Dept., filed Apr. 14, 2017). Moreover, the availability of Glomar
encourages the government tendency to favor secrecy (see Am. Civ. Liberties
Union v U.S. Dept. of Defense, 389 F Supp 2d 547, 561 [SD NY 2005] [“Glomar
responses . . . encourage an unfortunate tendency of government officials to over-
classify information, frequently keeping secret that which the public already
knows, or that which is more embarrassing than revelatory of intelligence sources
or methods.”]). It requires little effort for an agency to insert one or two sentences
of a conclusory, boilerplate Glomar response to a FOIL request as an additional
ground for denial, as the NYPD did in the Millions March NYC case (petition ¶ 27,
Millions March NYC, No. 100690/17). Yet, as the NYCLU knows well, that
response requires the requestor to commit significant additional time and resources
to litigate the denial—resources that most requestors do not have.
In the hands of an agency like the NYPD that has infamously shown little
regard for FOIL,10 Glomar threatens to eviscerate FOIL’s purpose to bring
sunshine and accountability to government operations. And the stakes for this
secrecy are particularly high here given the NYPD’s history of unwarranted
surveillance of community members for their political activities and religious
10 See Office of Bill de Blasio, Public Advocate for the City of New York, Breaking Through
Bureaucracy: Evaluating Government Responsiveness to Information Requests in New York City
(Apr. 2013) (giving the NYPD an “F” grade in its compliance with FOIL), available at
http://archive.advocate.nyc.gov/foil/report.
12
beliefs.11 The NYPD is in no position to dismiss the serious concerns of the
appellants, the media organizations, and the NYCLU underlying their opposition to
the First Department’s recognition of the Glomar doctrine.
II. IF THE COURT WERE TO RECOGNIZE THE GLOMAR
DOCTRINE UNDER FOIL, IT SHOULD ADOPT ADDITIONAL
SAFEGUARDS BEYOND THOSE PROPOSED BY THE NYPD.
If the Court were to hold that the Glomar doctrine exists under FOIL, it
should still vacate the First Department decision and impose strict safeguards to
ensure that Glomar is available in only “unusual circumstances, and only by a
particularly persuasive affidavit” (N.Y. Times Co. v U.S. Dept. of Justice, 756 F3d
100, 122 [2d Cir 2014] [hereinafter, “Drone Memo FOIA”] [rejecting Glomar
invocation for a memorandum setting forth lawfulness of U.S. targeted killing
operations] [internal quotation marks omitted]). The NYPD, recognizing the need
for such limitations on Glomar, proposes seven safeguards of its own:
(1) Charging the agency with the burden of proof; (2) Requiring that
the agency articulate a particularized and specific justification; (3)
Requiring submission of a detailed public affidavit in the usual
course; (4) Ensuring that the agency’s justification is subject to
adversarial testing; (5) Allowing the requestor to rebut the agency’s
justification with evidence that “contradicts the agency’s proffered
reasons or shows that the agency is invoking the response in bad
11 See e.g. Hassan v City of New York, 804 F3d 277, 307 (3d Cir 2015) (denying the NYPD’s
motion to dismiss in a case alleging discrimination in the surveillance of Muslim communities);
N.Y.C. Dept. of Investigation, Office of the Inspector General for the NYPD (OIG-NYPD), An
Investigation of NYPD’s Compliance With Rules Governing Investigations of Political Activity 1
(2016) (concluding that the NYPD “was often non-compliant with a number of rules” governing
investigations into political activities), available at
http://www1.nyc.gov/assets/oignypd/downloads/pdf/oig_intel_report_823_final_for_release.pdf.
13
faith;” (6) Applying the official acknowledgment waiver where
appropriate; and (7) Resolving doubts in favor of disclosure.
(Brief for respondents at 42-45.)
These safeguards proposed by the NYPD are necessary, but inadequate to
stem the potential fallout for transparency should Glomar become available under
FOIL. If the Court were to recognize the Glomar doctrine, it should adopt the
safeguards proposed by the NYPD, but as supplemented and revised by the
NYCLU below, and remand the case for further inquiry under these principles.
1. Heightened Presumption Against the Glomar Response.
FOIL already requires a presumption against secrecy (Gould, 89 NY2d at
275), as the NYPD implicitly acknowledges (see brief for respondents at 43-44
[recognizing that the agency bears the burden of proof and doubts should be
resolved in favor of disclosure]). But this Court should apply an even stronger
presumption against Glomar responses than the presumption that applies against
ordinary invocations of FOIL exemptions and the presumption that applies against
Glomar invocations in FOIA cases.
This heightened presumption is appropriate because, as discussed above (see
supra Part I), Glomar contravenes FOIL’s text and its purpose to serve the public
interest in transparency and accountability. Courts should avoid constructions of a
statute that deviate from its text (N.Y. Statutes § 73 [McKinney] [urging courts to
avoid “judicial legislation” because they “they do not sit in review of the discretion
14
of the Legislature or determine the expediency, wisdom, or propriety of its action
on matters within its powers”]). They should also avoid constructions that “tend[]
to sacrifice or prejudice the public interests” (id. § 152).
The heightened presumption is also appropriate under FOIL because federal
courts have rarely recognized Glomar invocations under FOIA that are not tied to
the “uniquely executive purview of national security” (Wilner v Natl. Sec. Agency,
592 F3d 60, 76 [2d Cir 2009] [internal quotation marks omitted]). As the trial
court in Hashmi recognized:
In the vast majority of Glomar cases, the invocation of the doctrine is
tethered to FOIA exemptions 1 and 3. FOIA exemption 1 protects
‘classified documents’ designated by ‘Executive Order.’ . . . 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.
(Hashmi, 46 Misc 3d at 723, R. 43). In these cases involving national security
secrets, federal courts have deferred to federal agencies’ expertise in those matters
and their claimed need to invoke Glomar (see Wilner, 592 F3d at 76; see also
Krikorian v Dept. of State, 984 F2d 461, 464 [DC Cir 1993] [noting deference to
15
the expertise of Executive agencies engaged in national security and foreign
policy]).
But these types of Glomar invocations based on national security matters,
and the corresponding deference to agencies, have no analogs under FOIL (see
Hashmi, 46 Misc 3d at 723-24, R. 43). FOIL governs records in the possession of
state and local entities, which do not have the power to classify documents (id.).
Moreover, the U.S. Constitution entrusts executive power over national security to
the federal government, not to the state and local agencies subject to FOIL (see e.g.
Am. Ins. Assn. v Garamendi, 539 US 396, 413, 429 [2003] [noting the President’s
independent authority in the areas of foreign policy and national security as well as
the commitment of foreign relations powers to the national government]; In re
Natl. Sec. Agency Telecom. Records Litig., 630 F Supp 2d 1092, 1102 [ND Cal
2009] [enjoining state investigations into electronic surveillance activities initiated
by the NSA because “intelligence activities in furtherance of national security
goals are primarily the province of the federal government”]; United States v
Adams, 473 F Supp 2d 108, 118 [D Me 2007] [noting the federal government’s
argument that “matters of national security are exclusively federal” in a case where
the United States sought to intervene in a state regulatory investigation]).12 This
12 In some cases courts have deferred to the FBI’s national security justifications even where it
did not tether its Glomar invocation to the national security exemptions (see e.g. Am. Civ.
Liberties Union of New Jersey v Fed. Bur. of Investigation, 733 F3d 526, 531 [3d Cir 2013]).
16
doctrinal background justifies a stronger presumption against Glomar under FOIL
than under FOIA.
2. Rejection of Blanket Justifications.
The NYPD acknowledges that a Glomar response should be permitted only
where the agency has met its burden of articulating a “particularized and specific
justification” showing that the existence or non-existence of responsive records
“falls squarely within the ambit” of a statutory exemption (brief for respondents at
43 [citing Fink v Lefkowitz, 47 NY2d 567, 571 [1979]]). This requirement, though
necessary, would be meaningless if it could be satisfied by the First Department’s
acceptance of the NYPD’s blanket Glomar invocation in this case as the NYPD
argues (see brief for respondents at 49-57). The Court must reject such blanket
justifications.
An important corollary to FOIL’s requirement of a particularized and
specific justification for claiming an exemption is the principle that “blanket
exemptions for particular types of documents are inimical to FOIL’s policy of open
government” (Gould, 89 NY2d at 275). Yet a blanket exemption for a category of
records—records relating to government surveillance or investigations of
individuals, regardless of individuals involved, time frame, or context—is exactly
what the NYPD has claimed here (see e.g. brief for respondents at 56 [“Anyone
Nonetheless, the FBI is a federal agency, and deference to it on national security matters should
not translate to deference for state and local agencies (see id.).
17
who requested this information would meet with the same response . . . .”]; aff of
Thomas Galati ¶¶ 46-47, R. 325 [asserting that secrecy unlimited in time is
appropriate]).
Under the NYPD’s theory, no one has any right to know whether the NYPD
had ever investigated or surveilled them. But that has never been the law or
practice under FOIL or under FOIA (see Lesher v Hynes, 19 NY3d 57, 68 [2012]
[holding that the exemption that protects against interference with law enforcement
investigations “ceases to apply after enforcement investigations and any ensuing
judicial proceedings have run their course”]; see also Voinche v Fed. Bur. of
Investigation, 940 F Supp 323, 326 [D DC 1996] [responding in part to records
request related to the FBI’s alleged wiretapping of the Supreme Court]; Sennett v
Dept. of Justice, 962 F Supp 2d 270, 276, 286 [D DC 2013] [providing certain
surveillance records requested from the FBI concerning the requestor and denying
the FBI one of its claimed exemptions]; Servicemembers Legal Def. Network v
Dept. of Defense, 471 F Supp 2d 78, 82 [D DC 2007] [providing certain
surveillance records of individuals and groups opposed to government’s policy on
gays and lesbians in the military]; Am. Civ. Liberties Union v Fed. Bur. of
Investigation, 429 F Supp 2d 179, 285 [D DC 2006] [providing certain FBI
surveillance records of domestic political and religious organizations in response to
18
FOIA requests]).13 The NYPD must provide more detail specific to each of the
requests and to the context of the requests to meet its obligation for providing a
particularized and specific justification for a Glomar response.
3. Broader Application of the Official Acknowledgment Waiver.
The NYPD recognizes that “official acknowledgment” waives an agency’s
ability to invoke a Glomar response (brief for respondents at 44, 60-62), but offers
a far too cramped view of that doctrine. Official acknowledgment waiver is not
limited, as the NYPD argues, to instances where the FOIL request seeks the
specific document that the government has already admitted exists (see id. at 60).
Although the agency certainly waives the Glomar response in those cases, it also
waives the response when it has already acknowledged the information that it
seeks to conceal under Glomar.
Two federal circuits, the D.C. Circuit and the Second Circuit, have explained
the logic of this broader view of official acknowledgment in Am. Civ. Liberties
Union v Cent. Intelligence Agency, 710 F3d 422, 427-31 [DC Cir 2013]
[hereinafter, “Drone FOIA”] and Drone Memo FOIA, opinion amended on denial
of reh, 758 F3d 436 [2d Cir 2014], supplemented, 762 F3d 233 [2d Cir 2014]. In
those cases, the CIA claimed that it could neither confirm nor deny the existence of
documents in its possession relating to targeted killing programs because the
13 Although some FOIA requests for investigatory or surveillance records have been met with
Glomar responses, the point remains that there is no categorical FOIA exemption for such
records.
19
response would reveal whether the CIA had an intelligence interest in or an
operational role in such programs (see Drone FOIA, 710 F3d at 428; Drone Memo
FOIA, 756 F.3d at 122). Although the CIA had not acknowledged the existence of
specific responsive documents, the courts found that it had waived its Glomar
response because the President and other officials had already acknowledged an
intelligence interest in those operations (see Drone FOIA, 710 F3d at 429-30;
Drone Memo FOIA, 756 F3d at 120-22).
Viewed in this light, the question is not whether the NYPD has ever
acknowledged the existence of responsive records. The NYPD has claimed that it
cannot confirm or deny the existence of records because that would reveal the
scope of their counterterrorism surveillance and investigations (aff of Thomas
Galati ¶¶ 19-26, R. 317-19; aff of Thomas Galati ¶¶ 19-26, R. 752-55). But the
NYPD has made a number of public statements already about the scope of its
Muslim surveillance program. For example, the former NYPD Commissioner
Raymond Kelly acknowledged, in an address delivered while he was the
Commissioner, that the NYPD compiled a listing of the major mosques and their
locations.14 Assistant Chief Thomas Galati testified in a deposition that the NYPD
“identified mosques throughout the city and the ethnic community or communities
14 Press Release, NYPD, Remarks of Police Commissioner Raymond W. Kelly Before ABNY &
Council on Foreign Relations Breakfast, Monday, Sept. 9, 2013, available at
http://www.nyc.gov/html/nypd/html/pr/pr_2013_09_09_pc_remarks_before_assn_for_better_ny
_council_foreign_relations.shtml.
20
that would go to the mosque” (deposition of Thomas Galati at 45:12-14, Handschu
v Special Services Div., No. 71 Civ. 2203 [June 28, 2012];15 see id. at 46:5-9 [“The
purpose of the Demographics Unit and the Zone Assessment Unit was to identify
mosques, to identify the ethnic community that would be associated with the
mosques.”]).
Where, as here, the NYPD has acknowledged the existence of a surveillance
program, it is “neither logical nor plausible” to permit a Glomar response to a
request for records regarding surveillance on a specific individual or an
organization that clearly falls within the program’s officially acknowledged scope
(see Drone FOIA, 710 F3d at 430-31 [rejecting Glomar even though no official has
“specifically stated that the CIA has documents relating to drone strikes” because
official statements render the justification for the Glomar response “neither logical
nor plausible”]). The Court should adopt this broader view of the official
acknowledgment waiver.
4. Review of Relevant Public Information.
The NYPD incorrectly asserts that public information relating to the subject
of the FOIL request is irrelevant to the Glomar inquiry if the information does not
derive from the agency that is the subject of the FOIL request (see brief for
respondents at 62). Even in the absence of official acknowledgment, courts should
15 Available at https://www.nyclu.org/sites/default/files/releases/Galati_EBT_6.28.12.pdf.
21
consider relevant public information in evaluating the validity of the Glomar
response (see Florez v Cent. Intelligence Agency, 829 F3d 178, 184-85 [2d Cir
2016] [remanding for the trial court to further examine the CIA’s Glomar response
where the FBI disclosed the existence of related, responsive records during the
appeal]). Availability of public information on the topic of the FOIL request tends
to undercut the claimed need for secrecy (see id.; see also Am. Civ. Liberties Union
of N. Cal. v U.S. Dept. of Justice, No. 12-CV-04008-MEJ, 2014 WL 4954277, at
*13-14 [ND Cal Sept. 30, 2014] [rejecting bid to conceal records relating to
surveillance technology given the information publicly available, including
through extensive media coverage], appeal docketed, No. 14-17339 [9th Cir Nov.
26, 2014]; Am. Civ. Liberties Union v Fed. Bur. of Investigation, No. 12-03728,
2013 WL 3346845, at *9 [ND Cal 2013] [rejecting FBI affidavit stating that
records “may” reveal an investigative technique, because it “fails to delineate how,
in this case, a technique unknown by the public will be revealed”]).16
Here, the volume of public information on the NYPD’s Muslim surveillance
program and its scope belies the NYPD’s claimed need for Glomar. The Pulitzer-
winning Associated Press articles on the NYPD’s suspicionless surveillance
program of the Muslim community included NYPD documentation that relates
16 Not every piece of public information, of course, would undermine the agency’s justifications
for Glomar (see e.g. Am. Civil Liberties Union of New Jersey, 733 F3d at 531-32). Each piece of
public information, however, should be considered relevant evidence for the Glomar claim (see
Florez, 829 F3d at 184-85).
22
specifically to the surveillance of the Mosque of Islamic Brotherhood and the
Rutgers Muslim Student Association, the organizations to which the appellants
belong.17 Even if the NYPD has never officially verified the documents released
by the Associated Press,18 the publicity surrounding the program raises doubts that
this is an “unusual circumstance” requiring a Glomar response (N.Y. Times Co.,
756 F3d at 122). The Court should require trial courts to evaluate relevant public
information in its review of Glomar responses.
CONCLUSION
Because the recognition of the Glomar doctrine would significantly
undermine FOIL, the Court should vacate the First Department decision that
adopted the doctrine with minimum guidance for future cases and minimum
inquiry into this particular Glomar invocation. If the Court determines that Glomar
responses are available under FOIL, it should remand the case to the trial court for
further scrutiny of the NYPD’s Glomar invocation in this case, applying the
safeguards described above and proposed by the NYPD.
17 Intelligence Division Report, Deputy Commissioner’s Briefing, Apr. 25, 2008, available at
http://hosted.ap.org/specials/interactives/documents/nypd/dci-briefing-04252008.pdf (stating that
the NYPD was “especially concerned with and keying on our convert mosques i.e. Ikhwa,
Taqwa, Iqquamatideen and MIB (Mosque of Islamic Brotherhood)”); NYPD Intelligence
Division, Weekly MSA Report, Nov. 22, 2006, available at
http://hosted.ap.org/specials/interactives/documents/nypd-msa-report.pdf.
18 Amicus notes, however, that in the papers below the NYPD referred to the AP document that
refers to Mosque of Islamic Brotherhood as “NYPD document” (Respondents’ Reply
Memorandum of Law at 6 n 2, Abdur-Rashid, R. 414).
DATE: June 1, 20 17
Mariko Hiros
Robert Hodgson
Christopher Dunn
New York Civil Liberties Union
Foundation
125 Broad Street, 19th Floor
New York, NY 10004 ·
Tel: (212) 607-3300
Fax: (212) 607-3318
cdunn@nyclu.org
Counsel for amicus curiae
23
I hereby certify that:
CERTIFICATE OF COMPLIANCE
WITH 22 NYCRR §500.1and500.13(c)(l)
1. This brief complies with the type-volume limitation of 500.13(c)(l)
because the total word count for all printed text in the body of the brief, exclusive
of the corporate disclosure statement, the status of related cases, the table of
contents, and the table of cases and authorities required by subsection (a) of this
section is 6987 words.
2. This brief complies with the typeface requirements of and the type style
requirements of 500.lQ)(l) because the body of this brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New
Roman and the footnotes are printed in 12-point Times New Rbman.
DATE: June 1, 2017
Robert Hodgson
Attorney for Amicus Curiae
24
