(CN) – New York’s highest court seemed unlikely Tuesday to make the NYPD face a records demand about a controversial Muslim surveillance program.
Talib Abdur-Rashid and Samir Hashim filed requests for the records shortly after the Associated Press published a series of articles in 2012 that revealed secret surveillance by the NYPD 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.
The articles reported that undercover officers snapped photos of license plates outside of mosques, recorded sermons through informants, and set up a safe house near a Rutgers campus in New Brunswick.
Abdur-Rashid, who is an imam at the Mosque of Islamic Brotherhood in Manhattan, claimed in an ensuing lawsuit that his records request generated “a Glomar-like response” from the chief of the NYPD’s intelligence bureau.
So-called Glomar responses take their name from a rescue mission by the CIA salvage ship Hughes Glomar Explorer to rescue a Soviet submarine during the Cold War.
In refusing to confirm or deny the existence of records about the classified mission, the CIA argued that merely discussing the existence of documents would imperil national security.
Abdur-Rashid’s attorney Omar Mohammedi has called the use of Glomar by city and state agencies unprecedented, but his arguments have failed thus far to gain traction in the lower courts.
During oral arguments in Albany this afternoon, Mohammedi argued that the NYPD is trying to “force secrecy” by using the Glomar doctrine.
Though the Legislature could create a Glomar-like carve-out for future requests under New York’s Freedom of Information Law, Mohammedi said the NYPD should not have been able to use it before such a statute is in place.
“They need to say ‘we have documents, [but] we cannot produce them to you,’” Mohammedi argued.
Arguing for the NYPD, meanwhile, New York City counsel Devin Slack said that legislative action is not needed because agencies are not required to explain their reasons for a records denial until the appeal stage.
Judge Jenny Rivera expressed concern at the hearing about the possibility that police and local agencies could abuse Glomar as a universal denial of any FOIL requests involving investigatory documents.
“I don’t understand how Glomar works unless it’s a blanket statement,” she said, noting the court could tread down a dangerous road if it allowed agencies to use Glomar as a carve-out. “Isn’t that a decision for the legislature to make?”
Slack argued that Glomar should not be used universally but in certain situations, such as if an individual filed a FOIL request about a potential investigation into himself.
Judge Eugene Fahey said allowing subjects to file FOIL requests regarding potential investigations into themselves creates “an impossible situation” for the NYPD.
Judge Paul Feinman meanwhile noted later that any ruling for Abdur-Rashid and Hashim “will have broader implications” far beyond their cases.
Rivera likewise said the court must “step very slowly and wait for the Legislature.”
Noting that the Glomar doctrine has only recently received recognition from some federal courts, Rivera said state legislators had already carved out FOIL exemptions to protect corporate trade secrets.
“The Legislature full well knows how to include such language,” she said.