MANHATTAN (CN) – Just like the CIA, the New York City Police Department can now “neither confirm nor deny” the existence of documents, thanks to a ruling Thursday from the state’s highest court.
By a razor-thin margin this morning, the New York Court of Appeals voted 4-3 against two men who have spent the last five years searching for records on the NYPD’s controversial Muslim surveillance program.
“I’m basically extremely disappointed not only for my clients, but also for all New Yorkers,” Omar Mohammedi, an attorney for the challengers, said in a phone interview.
Mohammedi’s clients, Talib Abdur-Rashid and Samir Hashmi, brought the underlying challenge after the Associated Press published a series of articles in 2012 that detailed the NYPD’s secret surveillance of Muslim-owned businesses and houses of worship in New York and New Jersey, as well as Muslim student groups in at least 16 colleges in the Northeast.
Abdur-Rashid is an imam at Manhattan’s Mosque of Islamic Brotherhood, and Hashmi belonged to one of the reportedly surveiled student groups.
Eventually the the AP’s Pulitzer Prize-winning expose led the NYPD to disband the so-called Demographics Unit in charge of the program, but officials claimed that its records on the program were privileged when pressed for records under New York’s Freedom of Information Law.
In denying to confirm or deny the existence of any sought-after records, the NYPD issued what is known as a “Glomar response,” named for a CIA salvage ship called the Hughes Glomar that was used to rescue a Soviet submarine during the Cold War.
The Court of Appeals endorsed that response Thursday, explicitly investing the NYPD with the need for spy-like secrecy in a 24-page opinion.
“Just as requiring the CIA to state whether it possesses documents relating to the Hughes Glomar explorer would reveal whether or not it was connected to that vessel, compelling the NYPD to state whether or not it possesses ‘investigative or surveillance’ records would reveal substantive information concerning an individual’s involvement with the NYPD investigation,” Chief Judge Janet DiFiore wrote for the majority.
“Put another way when there is a FOIL request as to whether a specific individual or organization is being investigated or surveilled, the agency – in order to avoid ‘tipping its hand’ – must be permitted to provide a Glomar-type response,” she added.
Mohammedi, the attorney for the men, argued the NYPD will now enjoy even less accountability under freedom of information law than their spy counterparts.
“Even the CIA has rules they have to follow, and they also have guidelines and laws under Congress,” the attorney noted.
In a scathing dissent, Judge Leslie Stein criticized her colleagues for accepting the NYPD’s counter-terrorism warnings at face value.
“Rather, the majority accepts, without any scrutiny, the NYPD’s claim that the scope of the relevant ‘investigation’ is ‘terrorism,’ and that revelation of any investigation – apparently of any person for any reason – could impede its counterterrorism efforts,” the 19-page dissent states.
The NYPD’s intelligence chief Thomas Galati detailed the department’s extensive counter-terrorism efforts in a 22-page affidavit, but he provided no specific information about Abdur-Rashid and Hashmi.
Stein noted that the court did not ask the police to provide evidence supporting their arguments for private, in camera review.
“Viewed in this light, it follows that the NYPD could claim the right to refuse to confirm or deny the existence of any record that even tangentially relates to any past, present, or future investigation of ‘crime,’ thereby avoiding its [Freedom of Information Law] obligations in innumerable cases,” Stein wrote.
NYPD Sergeant Vincent Merchese insisted that the department would use this power sparingly.
“In many FOIL matters, acknowledging that there are records responsive to a request which cannot be produced under FOIL presents no issues of concern,” Merchese said in an email. “However, in a very few FOIL matters, merely confirming the existence of records that cannot be disclosed under FOIL would itself raise issues about prior or ongoing confidential law enforcement activities.
“The NYPD takes the full range of issues into consideration as it evaluates each of the over 17,000 FOIL requests it receives on an individual case-by-case basis,” the sergeant continued. “To date the NYPD has rarely used the legal Glomar doctrine. The department will continue to do so only on a very limited basis and where appropriate.”
Attorneys for the NYPD made the same argument in court, but Stein remained skeptical of the assurance.
“The majority repeatedly asserts that permissible use of the Glomar doctrine will be ‘rare’ and ‘unusual,'” she said. “However, application of the doctrine under the circumstances presented here – despite the absence of in camera review to determine whether any of the exemptions set forth in FOIL actually apply and by defining the relevant investigation at the macro level of ‘terrorism’ – casts doubt on whether that will, or indeed can ever be, the reality.”
For Stein, New York’s judiciary made a decision about the lines between public safety and open government better left to the legislature.
Mohammedi said the Legislature should add more accountability to the state’s weakened record laws to empower people like his clients.
“They are good, law-abiding citizens, not terrorists,” he said.
The Reporters Committee for Freedom of the Press, the New York Civil Liberties Union and others submitted friends-of-the-court briefs.