MANHATTAN (CN) – Refusing to confirm or deny the existence of records may work for the CIA, but a judge refused Monday to let New York City use the tactic to keep protesters in the dark about police surveillance.
The NYPD used the non-answer — known in Freedom of Information Act cases as a Glomar response — when activists from a Black Lives Matter offshoot requested records on police monitoring of their social media during the demonstration known as Millions March NYC.
Scoffing at the terror-fighting justifications asserted in the case by the NYPD, Manhattan Supreme Court Justice Arlene Bluth found the Glomar response impermissible Monday.
“The petitioners here are protestors, engaging in First Amendment protected activity,” Bluth wrote. “The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.”
Using an abbreviation for New York’s Freedom of Information Law, Bluth said it would turn FOIL on its head to find otherwise.
“FOIL is not about blind trust — it is about holding government officials accountable,” the 14-page opinion states. “That principle is fundamental to a democratic society and cannot be cast aside so easily.”
New York Civil Liberties Union staff attorney Bobby Hodgson celebrated the ruling.
“Today the court confirmed that the NYPD cannot vastly expand the scope of the Glomar response to deny the public access to basic information regarding the tactics and technologies used by police to monitor First Amendment-protected political activity,” Hodgson said in a statement. “We are pleased that the court agreed that allowing the police to cite very general national security concerns in this case ‒ to avoid transparency and accountability over the surveillance of protesters ‒ would undermine the very purpose of the Freedom of Information Law.”
The NYPD also failed to sway the court Monday that the prices and features of its surveillance technology should be treated as trade secrets.
“If the prices and the product features are trade secrets, then every single contract a governmental agency enters into would be exempt from FOIL,” Bluth wrote. “Every contract contains information about pricing and, where a product is purchased, the contract presumably also has details about the product.”
Bluth was critical a well of an assertion by Deputy Commissioner for Intelligence John Miller that the NYPD could be trusted to not have interfered with protester cellphones, since such interference would violate the law.
“Revealing that the NYPD follows the law would not provide aid or comfort to terrorists,” Bluth wrote. “Of course, if respondent is using technology on protestors and, by its own account, violating the law, then it cannot hide exposure of that fact through a Glomar response.”
Reached for comment this afternoon, Sergeant Jessica McRorie said the NYPD is “reviewing the decision and will discuss our options with the Law Department.”
“The NYPD uses the Glomar response exceedingly sparingly and only after careful consideration of the interests involved, including transparency, the need to protect the integrity of criminal investigations and public safety,” she said.
When the state’s highest court vested the NYPD with the power to issue Glomar responses in certain circumstances last year, the department’s Miller called this ability essential for its counterterrorism purposes.
Glomar responses get their name from a Cold War-era records battle over CIA salvage ship called the Hughes Glomar.