In NYC Muslim Surveillance Case Appeals Court Gives NYPD Even More Opacity By Upholding Its Powers to Refuse to Confirm or Deny the Existence of Public Documents

From [HERE] Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state's appeals court has handed down its agreement. Apparently the NYPD can -- without being a federal agency or one charged with pursuing terrorists in foreign countries -- refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.

The case stems from federal intervention, however. The records sought pertain to the NYPD's now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD's routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.

C.J. Ciarmella sums up the majority's opinion for Reason.

In a lawsuit brought by two Muslim men seeking NYPD surveillance records on themselves under New York's Freedom of Information Law (FOIL), the state Court of Appeals said the department can invoke the so-called "Glomar response" made famous by the CIA—that is, it can refuse to say whether or not the records exist. Chief Judge Janet DiFiore, in a majority opinion joined by three of her colleagues, accepted the NYPD's argument that disclosing whether or not such records exist would compromise its counterterrorism operations. FOIL, DiFiore writes, "was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature."

This is a dangerous decision [PDF], one that will make an agency already belligerently indifferent to its obligations to the public even more secretive. The NYPD is not a national security agency, so its reliance on a national security-related response granted solely to federal agencies is misplaced. Or it was misplaced. Now it's perfectly fine for the NYPD to act like its the CIA or NSA, despite the fact its investigations and prosecutions are all routed through normal courts, rather than the FISA variety. The dissent (there are two dissenting opinions] points out that denying the NYPD the Glomar response does not mean it has to reveal sensitive information to requesters. But the NYPD has little to offer in support of its supposed "need" for a national security exemption previously utilized only by federal agencies.

The majority’s reliance on federal Glomar doctrine is misplaced. Yes, FOIL was structurally modeled on FOIA. However, as the dissent explains, the Glomar doctrine arises not from FOIA’s law enforcement exemption, but from FOIA’s exemption of documents “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy,” which has no analog in FOIL. The Constitution arrogates national defense and foreign policy to the federal government; the NYPD is not searching for a lost Soviet submarine or worried about the foreign policy consequences thereof. Both the majority and dissent tar their FOIL analysis by referring to the NYPD’s response as a “Glomar” response.


Those foreign-policy insecurities have no place in New York State’s excellent unified court system. Our government features neither a unitary executive tasked with the national defense nor an elaborate system of classified information to which courts routinely defer. Most CIA endeavors will never see the light of day, let alone that of a courthouse; the destiny of every successful NYPD investigation is to appear before a judge.

The dissent also calls out the majority for its extreme deference to the NYPD's national security hand-waving. There's nothing the NYPD does that is so far beyond the comprehension of the court that it is not qualified to even discuss the underlying issues in FOIL lawsuits.

Regardless of federal courts’ competence to evaluate foreign countries’ changing political climates, we are not similarly handicapped in judging the soundness of FOIL exemptions based on police, privacy, or other justifications. Our courts are fully capable of scrutinizing an agency’s “response on a case-by-case basis to ensure it is warranted under the particular circumstances presented” (majority op. at 16).

As it stands now, the NYPD has been given a gift of federal-level secrecy -- one with zero state-level statutory basis. The NYPD can, in essence, do more than the state's public records law permits. Its national security claims will rarely be challenged successfully because FOIL requesters (who often become FOIL lawsuit plaintiffs) will be hard-pressed to assert standing when they can even prove the requested documents exist.