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

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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

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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

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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

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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,

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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

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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

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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

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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).

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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

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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).

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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).

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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).

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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

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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-/.

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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.

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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.

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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

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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

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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]).

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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.).

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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

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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.

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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.

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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.

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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).

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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).