abdul-rashid v. nypd amicus brief

8/20/2019 Abdul-Rashid v. NYPD Amicus Brief

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NEW YORK SUPREME COURT

APPELLATE DIVISION: FIRST DEPARTMENT

~ ~ ~ ~ x

TALIB W, ADBUR-RASHID,

Petitioner-Appellant,

-against-

Sup, Court, New York County

Index No, 101559/20 13

NUW YORK CITY POLICE DEPARTMENT,

and RAYMOND KELLY,

in his official capacity as commissioner of the

New York City Police Department,

R E C E I V E D ·

U 5 l O f 5

suP COUf~ T\PP.

DI\ .

R ST DEP T . •

Respondents- Respondents.

~ ~ ~ x

AFFIRMATION OF MARIKa HIROSE IN SUPPORT OF MOTION BY

THE NEW YORK CIVIL LIBERTIES UNION AND THE BRENNAN

CENTER IfOR JUSTICE FOR LEAVE TO FILE MI I URI E BRIEF

Marika Hirose, an attorney admitted to practice before the courts of New

York, affirms the following to be true under penalty of perjury:

; : : _ :

; q

CCl


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national security, to circumvent requests under the federal Freedom of Information

Act by neither confirming nor denying that responsive records exist. The lower

court in this case permitted a Glomar response for the first time in the history of

New York FOIL.

2. The NYCLU, the New York State affiliate of the American Civil

Liberties Union, is a non-profit, non-partisan organization with tens of thousands

of members. 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. Attorneys from the NYCLU are

litigating

Raza v . City of New York

No. 13 Civ. 3448 (E.D.N.Y.), the

constitutional challenge to the NYPD's suspicionless surveillance of mosques and

Muslim communities, and

Handschu

v.

Special Serv.

Div

No. 71 Civ. 2203

(S.D.N.Y.), the constitutional challenge to the NYPD's surveillance of


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department's use oftasers); N.Y Civil Liberties Union v. City of NY Police Dep t

74 A.D.3d 632 (lst Dep't 2010) (granting request for records identifying the race

of persons shot at but not hit by NYPD officers);

N. Y Civil Liberties Union

v.

Erie

Cty. Sheriff s Office

47 Misc. 3d l20l(A) (Supreme Court, Erie County Mar. 17,

2015) (granting request for records related to stingrays surveillance equipment);

N. Y Civil Liberties Union

v.

City ofN. Y Police Dep t

20 Misc.3d 1l08(A)

(Supreme Court, New York County May 7,2008) (granting request for stop-and-

frisk database).

4. The NYCLD is well-positioned to be of assistance to this Court

because of its familiarity with FOIL as well as its experience in litigating

Glomar

responses under the federal Freedom of Information Act.

See e.g. N. Y Times

v.

Us. Dep t of Justice

756 F.3d 100 (2d Ciro2014) (ACLD and the New York

Times seeking records related to lawfulness of targeted killings);

Am. Civil


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5. From this experience, the NYCLU understands well how the Glomar

doctrine has undermined FOlA and how it would likely have a similar effect on

FOIL by encouraging government secrecy and cutting off public debate.

6. Co-amici the Brennan Center for Justice at NYU School of Law is a

non-partisan public policy and law institute focused on fundamental issues of

democracy and justice, including the intersection of national security and civil

liberties as well as the importance of government transparency and

accountability.'

The Center's Liberty and National Security (LNS) Program uses innovative policy

recommendations, litigation, and public advocacy to advance effective national

security policies that respect the rule of law and constitutional values. Reining in

excessive government secrecy is one of the LNS Program's main areas of focus,

and the Brennan Center has issued several reports on the need to increase the

transparency of national security policies and activities. See e.g. BRENNAN


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classify information simply because it could be used to stir anti-American

sentiment abroad or embarrass the U.S.), and

Ctr.for Constitutional Rights v. Cent.

Intelligence Agency

135 S.Ct. 1530 (2015) (supporting cert., describing the

epidemic of overclassification in government agencies and the resulting risk to

FOlA itself).

7. The NYCLU and the Brennan Center for Justice seek to participate as

amici curiae

in this case because of concern that importing

Glomar

into FOIL

would undercut the effectiveness of FOIL as a tool for government transparency

and accountability.

8. The proposed brief of amici curiae is attached to this affirmation as

Exhibit A. This brief supplements the Petitioner's brief by elaborating on two

issues that may otherwise escape the Court's consideration. First, the brief argues

that, absent an overriding need for a new level of secrecy, the Legislature, not the


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Dated: July 30,2014

New York, New York

kept surveillance records on the City's mosques, regardless of the extent of public

knowledge about the NYPD' s widespread surveillance of Muslim communities,

and regardless of the time limitations specified in the requests.

9. As required by Rule 600.2(a)(3), attached as Exhibit B is the notice of

appeal in this matter and attached as Exhibit C is the order sought to be reviewed.

10. For these reasons, the NYCLU and the Brennan Center for Justice

respectfully seek the Court's permission to file the attached amici curiae brief.

Marika Hirose

New York Civil Liberties Union

Foundation

125 Broad Street, 19th Floor

New York, NY 10004


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· EXHIBIT A


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SUPREME COURT INDEX NO. 101559/2013

New York Supreme CourtAppellate Division – First Department

_________________________________

TALIB W. ADBUR-RASHID,

Petitioner-Appellant,

-against-

NEW YORK CITY POLICE DEPARTMENT, and RAYMOND KELLY,

in his official capacity as commissioner of the New York City Police Department,

Respondents-Respondents.

BRIEF OF AMICI CURIAE THE NEW YORK CIVIL LIBERTIES UNION

AND THE BRENNAN CENTER FOR JUSTICE IN SUPPORT OF

PETITIONER-APPELLANT

Michael Price Mariko Hirose


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TABLE OF CONTENTS

PRELIMINARY STATEMENT ............................................................................... 1

STATEMENTS OF INTEREST OF AMICI CURIAE .............................................. 3

ARGUMENT ............................................................................................................. 6

I. THE COURT SHOULD NOT IMPORT THE FEDERAL GLOMARDOCTRINE INTO THE FREEDOM OF INFORMATION LAW BASED

SOLELY ON FEDERAL PRECEDENT OR ON THE EVER-PRESENT

RISK OF TERRORISM. ................................................................................. 6

II. THE COURT SHOULD NOT ACCEPT THE BLANKET GLOMAR

INVOCATION IN THIS CASE. ...................................................................12

CONCLUSION ........................................................................................................20


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TABLE OF AUTHORITIES

CASES

Am. Civil Liberties Union v. Cent. Intelligence Agency,

710 F.3d 422 (D.C. Cir. 2013) ................................................................ passim

Am. Civil Liberties Union v. U.S. Dep’t of Def.,

752 F. Supp. 2d 361 (S.D.N.Y. 2010) ............................................................. 4

Am. Civil Liberties Union v. U.S. Dep't of Def.,

389 F. Supp. 2d 547 (S.D.N.Y. 2005) ............................................................. 8

Am. Civil Liberties Union v. Fed. Bureau of Investigation,

59 F. Supp. 3d 584 (S.D.N.Y. 2014) ............................................................... 4

Am. Civil Liberties Union v. Fed. Bureau of Investigation,

2013 WL 3346845 (N.D. Cal. 2013) ............................................................. 17

Am. Civil Liberties Union of N. Cal. v. U.S. Dep’t of Justice,

2014 WL 4954277 (N.D. Cal. Sept. 30, 2014) ........................................ 16, 17

Asian Am. Legal Def. & Educ. Fund v. City of N.Y. Police Dep't ,41 Misc. 3d 471 (Sup. Ct., New York County 2013) .................................... 19


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Dunlea v. Goldmark ,

54 A.D.2d 446 (3d Dep’t 1976) ....................................................................... 9

Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State Univ. of

N.Y. at Farmingdale, 87 N.Y.2d 410 (1995) ................................................... 9

Gould v. City of N.Y. Police Dep’t ,

89 N.Y.2d 267 (1996) ................................................................................ 7, 13

Grabell v. City of N.Y. Police Dep’t ,

996 N.Y.S.2d 893 (Sup. Ct., N.Y. County 2014) .................................... 11, 16

Gray v. Faculty-Student Ass’n of Hudson Valley Cmty. Coll., Inc.,

717 N.Y.S.2d 507 (Sup. Ct., Rensselaer County 2000) ................................ 16

Handschu v. Special Serv. Div.,No. 71 Civ. 2203 (S.D.N.Y.) ........................................................................... 3

Hashmi v. City of N.Y. Police Dep't ,

46 Misc. 3d 712 (Sup. Ct., New York County 2014) ............................. passim

Laborers’ Int’l Union of N. Am., Local Union No. 17 v. New York State

Dep’t of Transp., 280 A.D.2d 66 (3d Dep’t 2001) ........................................ 16

Lame v. U.S. Dep’t of Justice,


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N.Y. Civil Liberties Union v. City of Saratoga Springs,

87 A.D.3d 336 (3d Dep’t 2011) ....................................................................... 3

N.Y. Civil Liberties Union v. City of Schenectady,

2 N.Y.3d 657 (2004) ........................................................................................ 3

N.Y. Civil Liberties Union v. Erie Cty. Sheriff’s Office,

47 Misc. 3d 1201(A) (Supreme Court, Erie County Mar. 17, 2015) .............. 4

N.Y. Civil Liberties Union v. City of N.Y. Police Dep't ,

20 Misc.3d 1108(A) (Supreme Court, New York County May 7, 2008) ....... 4

N.Y. Civil Liberties Union v. City of N.Y. Police Dep't,

74 A.D.3d 632 (1st Dep’t 2010) .................................................................. 3, 4

Raza v. City of New York ,No. 13 Civ. 3448 (E.D.N.Y.) ........................................................................... 3

Schulze v. Fed. Bureau of Investigation,

2010 WL 2902518 (E.D. Cal. July 22, 2010) .................................................. 8

Wolf v. Cent. Intelligence Agency,

473 F.3d 370 (D.C. Cir. 2007) ....................................................................... 14

STATUTES


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MISCELLANEOUS

AP’s Probe Into NYPD Intelligence Operations, Associated Press,http://www.ap.org/Index/AP-In-The-News/NYPD ....................................... 18

BRENNAN CENT. FOR JUSTICE, STRENGTHENING INTELLIGENCE

OVERSIGHT (Michael German, ed. 2015). ...................................................... 5

Chris Hawley & Eileen Sullivan, Hundreds of Muslims Rally in Protest Against NYPD Spying, NBC New York, Nov. 18, 2011,

www.nbcnewyork.com/news/local/Muslim-Rally-NYPD-Spy-

Case-Police-Surveillance-Terror-Investigation-134108378.html ................. 18

ELIZABETH GOITEIN, BRENNAN CENT. FOR JUSTICE, REDUCING

OVERCLASSIFICATION THROUGH ACCOUNTABILITY (2011). ............................ 5

EMILY BERMAN, BRENNAN CENT. FOR JUSTICE, EXECUTIVE PRIVILEGE: A

LEGISLATIVE REMEDY (2009). ......................................................................... 5

Handschu v. Special Services Div., No. 71 Civ. 2203,

Thomas Galati Dep., June 28, 2012, available at

http://www.nyclu.org/files/releases/Galati_EBT_6.28.12.pdf. ..................... 14

Intelligence Division Report , Deputy Commissioner’s Briefing,

Apr. 25, 2008, http://hosted.ap.org/specials/interactives/documents/


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New York City Profiling Collaborative et al., In Our Own Words:

Narratives of South Asian New Yorkers Affected by Racial and

Religious Profiling (Mar. 2012), available athttp://saalt.electricembers.net/wp-content/uploads/2012/09/

In-Our-Own-Words-Narratives-of-South-Asian-New-Yorkers-

Affected-by-Racial-and-Religious-Profiling.pdf ...........................................17

Press Release, NYPD, Remarks of Police Commissioner

Raymond W. Kelly Before ABNY & Council on Foreign RelationsBreakfast, 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. ................................................................................. 14


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PRELIMINARY STATEMENT

This appeal is from one of two cases decided recently by lower courts in this

Court’s jurisdiction that raise the question whether the Freedom of Information

Law permits state and local agencies to invoke Glomar —a doctrine that has

permitted federal agencies, in narrow circumstances often related to national

security, to circumvent requests under the federal Freedom of Information Act by

neither confirming nor denying that responsive records exist. Both cases arose out

of similar FOIL requests filed by Muslim community members seeking records

relating to the NYPD’s investigation or surveillance of them and their activities. In

one case —Hashmi v. City of N.Y. Police Dep’t , 46 Misc. 3d 712 (Sup. Ct., New

York County 2014), leave to file appeal granted— the lower court rejected the

NYPD’s contention that the Glomar doctrine is necessary to protect law

enforcement interests. By contrast, in this case the lower court permitted the same


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First, the brief argues that the Legislature, not the judiciary, is presumptively

the appropriate entity to decide whether to engraft a Glomar response onto FOIL’s

carefully calibrated statutory scheme of openness. Neither the fact that the Glomar

doctrine exists under federal law nor the ever-present possibility of terrorism

adequately justify deviating from this scheme and judicially creating the Glomar

doctrine under state law.

Second, the brief argues that the NYPD’s blanket Glomar response must be

scrutinized carefully. In this case, this Court does not need to decide the weighty

question of whether a Glomar response is ever appropriate under state law because

it should instead vacate the lower court’s acceptance of the NYPD’s sweeping

claim for secrecy. On remand, the lower court should be required to examine

whether the NYPD justified its asserted need for secrecy regardless of the official

acknowledgement that it kept surveillance records on the City’s mosques,


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STATEMENTS OF INTEREST OF AMICI CURIAE

Amicus curiae the New York Civil Liberties Union, the New York State

affiliate of the American Civil Liberties Union, is a non-profit, non-partisan

organization with tens of thousands of members. 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.

Attorneys from the NYCLU are litigating Raza v. City of New York , No. 13 Civ.

3448 (E.D.N.Y.), the constitutional challenge to the NYPD’s suspicionless

surveillance of mosques and Muslim communities, and Handschu v. Special

Services Division, No. 71 Civ. 2203 (S.D.N.Y.), 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


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Police Dep't , 74 A.D.3d 632 (1st Dep’t 2010) (granting request for records

identifying the race of persons shot at but not hit by NYPD officers); N.Y. Civil

Liberties Union v. Erie Cty. Sheriff’s Office, 47 Misc. 3d 1201(A) (Supreme Court,

Erie County Mar. 17, 2015) (granting request for records related to “stingrays”

surveillance equipment); N.Y. Civil Liberties Union v. City of N.Y. Police Dep't , 20

Misc.3d 1108(A) (Supreme Court, New York County May 7, 2008) (granting

request for stop-and-frisk database).

In this case, the NYCLU is particularly concerned that importing Glomar

into FOIL would undercut the effectiveness of FOIL as a tool for government

transparency and accountability. Attorneys from the NYCLU and the ACLU have

mounted a number of challenges to Glomar responses in the FOIA context. See,

e.g., N.Y. Times v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (ACLU and

the New York Times seeking records related to lawfulness of targeted killings);


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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.

Amicus curiae the Brennan Center for Justice at NYU School of Law is a

non-partisan public policy and law institute focused on fundamental issues of

democracy and justice, including the intersection of national security and civil

liberties as well as the importance of government transparency and accountability.1

The Center’s Liberty and National Security (LNS) Program uses innovative policy

recommendations, litigation, and public advocacy to advance effective national

security policies that respect the rule of law and constitutional values. Reining in

excessive government secrecy is one of the LNS Program’s main areas of focus,

and the Brennan Center has issued several reports on the need to increase the

transparency of national security policies and activities. See, e.g., BRENNAN


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classify information simply because it could be used to stir anti-American

sentiment abroad or embarrass the U.S.), and Center for Constitutional Rights v.

Central Intelligence Agency, 135 S. Ct. 1530 (2015) (supporting certiorari,

describing the epidemic of overclassification in government agencies and the

resulting risk to FOIA itself).

ARGUMENT

I.

THE COURT SHOULD NOT IMPORT THE FEDERAL GLOMAR

DOCTRINE INTO THE FREEDOM OF INFORMATION LAW

BASED SOLELY ON FEDERAL PRECEDENT OR ON THE EVER-

PRESENT RISK OF TERRORISM.

The lower court erred in importing the Glomar doctrine into FOIL from

federal law (Decision and Judgment, Sept. 11, 2014, R. 16), without recognizing—

as the Hashmi court did in a case raising nearly identical issues, 46 Misc. 3d at

722-23—that the Legislature is presumptively the more appropriate entity for


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determine the expediency, wisdom, or propriety of its action on matters within its

powers.”).

In this case, the lower court gave no weight to the fact that importing the

Glomar doctrine would significantly alter FOIL’s carefully calibrated legislative

scheme. For nearly forty years, FOIL exemptions have been interpreted,

consistently with the plain language of the law, to permit agencies to withhold

“records or portions thereof,” N.Y. Pub. Off. Law § 87(2)—not the mere

information about whether records exist. Moreover, FOIL does not permit

agencies to remain silent about the non-existence of records and instead requires

them, at the request of the FOIL filer, to certify that the requested records do not

exist or cannot be found after a diligent search. See N.Y. Pub. Off. Law § 89(3)(a);

see, e.g., DeFabritis v. McMahon, 301 A.D.2d 892, 894 (3d Dep’t 2003) (requiring

certification that no responsive records exist other than records that were already


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non-response and represents the most extreme departure from the policy purpose . .

. to inform and promote transparency in governmental affairs.” Schulze v. Fed.

Bureau of Investigation, No. 05 Civ. 0180, 2010 WL 2902518, at *20 (E.D. Cal.

July 22, 2010). The recognition of the Glomar doctrine under federal law has had

a significantly negative impact on FOIA, leading to excessive secrecy, lack of

court oversight, and unjustified obstacles for requestors. (See, e.g., Brief of Amici

Curiae The Reporters Committee for Freedom of the Press, July 22, 2015, at 11-

21.) As one federal court in New York acknowledged, “[T]he danger of Glomar

responses is that they 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.” Am. Civil Liberties Union v. U.S. Dep’t of Def., 389 F. Supp.

2d 547, 561 (S.D.N.Y. 2005). Recognition of a Glomar response under FOIL


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The textual distinctions between FOIL and FOIA previously have led the New

York Court of Appeals to interpret FOIL’s disclosure obligations more broadly

than those of FOIA. See Encore Coll. Bookstores v. Auxiliary Serv. Corp. of State

Univ. of N.Y. at Farmingdale, 87 N.Y.2d 410, 416-18 (1995) (holding that federal

courts’ interpretation of “agency records” under FOIA should not limit the

textually distinct definition of “records” under FOIL). In addition, in FOIL,

unlike in FOIA, the Legislature has codified its “fundamental finding . . . that the

public should have unimpaired access to records.” Dunlea v. Goldmark , 54

A.D.2d 446, 449 (3d Dep’t 1976), aff’d , 43 N.Y.2d 754 (1977); see N.Y. Pub. Off.

Law § 84.2

Here, even if the Glomar doctrine may be necessary for the federal

government’s national security apparatus, there is little evidence that a similar

level of secrecy is necessary for the state and local agencies covered by FOIL that


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that work in conjunction with the “federal government's national security

apparatus”); McNamera v. U.S. Dep’t of Justice, 974 F. Supp. 946, 953-54 (W.D.

Tex. 1997) (noting that agencies other than the CIA have not fared well in their

Glomar invocations). The NYPD, like other local law enforcement agencies

across the State, has been “able to protect sensitive information very well within

the existing procedures that FOIL currently provides”—that is, by identifying

responsive records and claiming secrecy over the content of the records rather than

their existence. Hashmi, 46 Misc. 3d at 724. That no other state court has adopted

the Glomar doctrine into state public records laws is further evidence that state and

local agencies may not have a need for such a heightened level of secrecy.3

Although the NYPD dedicated pages of its briefing and affidavit to its need

for exceptional secrecy to address terrorist threats as a general matter (Affidavit of

Thomas Galati, Feb. 11, 2014, ¶¶ 10-18, R. 92-100 (listing terrorist attacks and


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has recently invoked the risk of terrorism in a range of contexts to seek exemptions

from FOIL and to argue for agency deference. See, e.g., Grabell v. City of N.Y.

Police Dep't , 996 N.Y.S.2d 893, 902 (Sup. Ct., N.Y. County 2014) (rejecting the

NYPD’s claim that requested records relating to its past use of x-ray vans must be

kept secret because of terrorism concerns); see also Letter from Jonathan David,

NYPD Records Access Appeals Officer, to Mariko Hirose, Nov. 5, 2014 at 2-3

(denying records relating to the number and use of automatic license plate readers

on the basis that it would “reveal elements of the inner workings and of the

operational details of a counterterrorism system used to deter and detect terrorist

activity”), available at http://www.nyclu.org/files/20141105_NYPD_ALPR_

FOILResponseAppeal.pdf. But the threat of terrorism has always existed and will

always exist. If September 11, 2001, changed the NYPD’s need for secrecy under

FOIL, the NYPD should take those arguments to the Legislature.


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not the judiciary, is presumptively the appropriate entity for taking the momentous

step of engrafting the Glomar doctrine into state law.

II. THE COURT SHOULD NOT ACCEPT THE BLANKET GLOMAR

INVOCATION IN THIS CASE.

In this case, the Court need not reach the question posed above, because the

Court should vacate the lower court’s acceptance of the NYPD’s blanket Glomar

invocation and remand for a more searching inquiry. The lower court failed to

conduct a searching analysis of the NYPD’s Glomar invocation with respect to the

fifteen separate categories of requests served on the NYPD by Imam Abdur-

Rashid4—and accepted instead the blanket claim that even confirming or denying

4 Specifically, the FOIL request sought the following: “(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


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the existence of responsive records for any of the categories requested would

disclose information that is “compiled for law enforcement purposes and which, if

disclosed, would . . . interfere with law enforcement investigations,” “reveal

criminal investigative techniques or procedures, except routine techniques and

procedures,” and “endanger the life and safety of numerous people.” (Decision and

Judgment, R. 14 (citing N.Y. Pub. Off. Law §§87(2)(e)(i),(2)(e)(iv),(2)(f)).)

This blanket claim of secrecy is inconsistent with FOIL and merits closer

scrutiny. See Gould , 89 N.Y.2d at 275 (rejecting “blanket exemptions” and

requiring a “particularized and specific justification” for withholding records

(internal quotation marks omitted)). First, for example, the lower court failed to

recognize that many of the requests seek records that the NYPD has already

officially acknowledged exist. (See Pet.’s Mem. of Law in Opp. to Mot. to

Dismiss at 12-13, R. 166-67 (citing examples of both official acknowledgment and


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370, 379 (D.C. Cir. 2007). This fact must have been “made public through an

official and documented disclosure.” Wolf , 473 F.3d at 378.

Several of the requests appear to fit within the confines of the official

acknowledgment exception to Glomar because top officials in the NYPD have

acknowledged that the NYPD conducted surveillance on mosques and their

congregants. 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,5 and Assistant Chief Thomas

Galati testified in a deposition that the NYPD “identified mosques throughout the

city and the ethnic community or communities that would go to the mosque.”6

These statements in effect acknowledge that the NYPD has records about mosques

throughout New York City and that therefore there exist records responsive to

request 12, which seeks “records related to the surveillance of the Mosque of


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In this respect this case is similar to American Civil Liberties Union v.

Central Intelligence Agency, where the D.C. circuit rejected a Glomar invocation

by the CIA in response to a request for records about drone strikes. The CIA

contended in that case that confirming the existence of responsive records would

reveal protected information about whether the agency “at least has an intelligence

interest in drone strikes.” 710 F.3d at 428-29 (internal quotation marks omitted).

The court held that although there had been no official acknowledgment

specifically of the existence of responsive records, the CIA’s Glomar invocation

was “neither logical nor plausible” given that the President of the United States,

and then-Assistant for Homeland Security John Brennan, had officially

acknowledged that the United States has participated in drone strikes. Id. at 428-

30. As in that case, the NYPD’s Glomar assertion that it needs to keep secret

whether it has an intelligence interest in the Mosque of Islamic Brotherhood


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acknowledgment doctrine would not bar the NYPD’s Glomar invocation but citing

widespread public knowledge of the NYPD’s surveillance program in deciding

against incorporating the Glomar doctrine). Outside of the Glomar case law,

courts have found that the government’s rationale for seeking a FOIL or FOIA

exemption is undercut as a logical matter if the public already knows the

information that the government seeks to keep secret in asserting the exemption.

See Laborers’ Int’l Union of N. Am., Local Union No. 17 v. New York State Dep’t

of Transp., 280 A.D.2d 66, 70 (3d Dep’t 2001) (holding that there was “no legal or

logical basis” to the argument that disclosure of a lease that has been awarded but

not approved could lead competitors to upset the contract process where

competitors were aware that construction activity had already begun on leased

land); Grabell, 996 N.Y.S.2d at 902 (denying law enforcement exemption over a

surveillance device in part because “much information about [the surveillance


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surveillance technology where there is much public information available), appeal

docketed , No. 14-17339 (9th Cir. Nov. 26, 2014); Am. Civil Liberties Union v. Fed.

Bureau of Investigation, No. 12-03728, 2013 WL 3346845, at *9 (N.D. 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”). In these cases, it has not mattered whether the public

learned the information from the government itself, or from media reports, or from

visual observations. See supra; see especially Am. Civil Liberties Union of N. Cal.,

2014 WL 4954277, at *13 (stating that public knowledge undermining the law

enforcement exemption to FOIA is “evidenced by a number of news articles and

judicial opinions addressing these techniques”).

Here, the NYPD’s claimed need for secrecy over the existence of responsive

records appears illogical as to many of the requests given that the public already


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released a series of articles about this NYPD surveillance program, including

NYPD documentation that relates to the surveillance of the Mosque of Islamic

Brotherhood.8 The NYPD acknowledged below that this document is its agency

document but did not explain why the document would not be responsive to

requests 11 and 13. (Resp.’s Reply Mem. of Law at 6, n.2 (referring to the

document referencing the Mosque of Islamic Brotherhood as “NYPD document”),

R. 197.)

Finally, some of the requests seek records relating to investigations that

occurred between 2006 and 2012, raising the question whether the NYPD has

adequately stated its need for secrecy over the existence of records from the entire

time frame of the request. The NYPD asserted that secrecy that is unlimited in

time is appropriate because even an investigation that has been closed or

discontinued some time ago “may become significant at a later date” (Galati Aff. ¶


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investigations and any ensuing judicial proceedings have run their course.” Lesher

v. Hynes, 19 N.Y.3d 57, 68 (2012); see, e.g., Council of Regulated Adult Liquor

Licensees v. City of N.Y. Police Dep't , 300 A.D.2d 17, 18 (1st Dep’t 2002)

(ordering disclosure, with certain redactions for prospective police activity, of law

enforcement records that are over two years old and “[are] for the most part not

relevant to any current or future investigation or prosecution . . ., other than to

provide historical context”). The lower court failed to acknowledge or examine

how the NYPD’s broad assertion squares with this precedent and whether unusual

circumstances continue to bar even the disclosure of the mere fact that records

exist, even about the existence of records from now almost ten years ago.9

The lower court decision cannot be sustained because it accepted a blanket

invocation of Glomar without closely evaluating whether the NYPD met its burden

of justifying such broad secrecy. Glomar is an exceptional doctrine even under


34/47

manner that it was in this case, and on remand the lower court should be required

to evaluate the need for secrecy more carefully.

ON LUSION

For the reasons described above, the COU1ishould vacate the decision below

that adopted the sweeping lom r doctrine into FOIL and remand to the lower

court for further scrutiny of the NYPD s claimed need for secrecy.

DATE:

July 30, 2015

Respectfully submitted,

Mariko Hirose

Jordan Wells

Christopher Dunn

New York Civil Liberties Union

Foundation

125 Broad Street, 19th Floor

New York, NY 10004


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SUPREME COURT INDEX NO. 101559/20l3

PRINTING SPE IFI TIONS ST TEMENT

This computer-generated brief was prepared using a proportionately spaced

typeface.

Name of typeface: Times New Roman

Point size:

Line spacing: Double

The total number of words in the brief, inclusive of point headings and

footnotes and exclusive of pages containing the table of contents, table of

authorities and proof of service is 4,923.

~ M

Jordan WeUs


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EXHIBITB


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Petitioner,

. . . . . .

559/2013

SUPREME COURT OF THE STATE OF NEW YORK' . ~·.L

= ~ ~ : _ : _ ~ : . _ ~ : : : _ ~ ~ ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - x. .

t ~ ~ ~

TALIB W. ADBUR~RASHID, t. ;

-against-

.

NEW YORK CITY POLICE DEPARTMENT,

and RA YMOND KELL Y, in his official capacity

as Commissioner of the New York City Police

Department,

e.•• j

NOTICE OF APPEAL

Respondents.

For a Judgment Pursuant to Article 78

of the Civil Practice Law and Rules

~~~-~-~~~~~-~--~-~--~- -~---~~-~--~----------- ----------~~~-X

PLEAS TAKE NOTICE that Petitioner, TALIB W. ABDUR RASHID, hereby appeals

to the Supreme Court of the State of N ew York, Appellate Division, First Department from the

Decision and Judgment of the Supreme Court of the State of New York, County of New York


38/47

By:

Dated:

New York, New York

October 22,2014

O)£'; '~, Moiammedi

'É~w Firm ;fOmar T. Mohammedi, LLC

233 Broadway, Suite 801

Woolworth Building

New York, NY 10279

(212) 725-3846

C oun se l f or Pe ti tio n er

TO: Zachary W. Carter

Jeffery S. Dantowitz

Corporation Counsel of the City of New York

Attomey for Respondents

100 Church Street, Room 2-121

New York, New York 10007

(212) 356-0876


39/47

EXHIBIT C


40/47

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

- - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

TAUB W. ABDUR-RASHID,

-against-

Petitioners, Index No. 101559/2013

lAS Part 33

(Hunter, J.)

NEW YORK CITY POLICE DEPARTMENT, and

RA YMOND KELL Y, in his official capacity as

Commissioner of the New York City Police Department,

NOTICE OF ENTRY

Respondents.

For a Judgment Pursuant to Article 78 of the Civil Practice

Law and Rules

~ x

PEASE TAKE NOTICE, that a Decision and Judgment, a true and complete

copy of which is annexed hereto, was entered in the office of the New York County Clerk on

September 25,2014.

Dated:

New York, New York

September 30,2014


41/47

---- _ .

_ _ ..

_ . _ _

. . . . . _ -

.. .

_ . . . . _ . . . . _ ..•

_ ._

.. . ~..

.

.

·SUPREME.COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

Index Number: 101559/2013

ABDUR-RASHID, TALIB W,

PART 33

D 0 . ~13

MonON D ATE _

MonON SEQ. NO.

00

I

vs

N,y,P.D,

. Sequence Number: 001

ARTICLE 78

. . .

T he fo llow ing papers, num bered 1 to __ , w ere read on th is m otion

tolfor

No ti ce o f Motion/Order to S ho w C au st;l- A ffid av its - Exhibits

Answering A ffidav its - Exhibits _~ - -- _

Replying A ffidav its ~--,._ _ _ ~ _

UP~11

he.

foregoing

papers ,

It

i ?

ordered that this motion Is

I

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¡Nö(s ) ._ . . . .. . . .. . . ,, ,. , .. . -- __

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42/47

SUPREME COURT OF THE STATE OF NEW YOR1<

COUNTY OF NEW YORK: PART 33

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Talib W. Abdur-Rashid,

Petitioner,

Index No.:101559/2013

For a Judgment Pursuant to C.P.L.R. Article 78,

-agaínst-

Decision and Judgment

New York City Police Department, and Raymond Kelly,

Inhis official capacity as Commissioner of the New

York City Police Department,

Respondents .

• - ,. .- - -- .- - -- - -- - -- - -- - -- - -- • • - _- - •• •• - - - -. -- - - • •• - • • - - -- - -. - -- - -- - - X

HON. ALEXANDER W. ,HUNTER~JR,

. .

The application by petitioner for an order pursuant to CPLR Article 78, directing

respondents to provide petitioner with records responsive to petitioner's Freedom of Information

Law ( FOIL ) request 12-PL-I06546 made pursuant to Public Officers Law ( POL )

§§

84 et

seq. is denied. The cross motion by respondents to dismiss the petition is granted.

This case presents an important issue of apparent first impression - whether a local New

York State law enforcement agency responding to a FOIL request may refuse to confirm or deny

the existence of responsive records by adopting the Glornar doctrine which permits federal

agencies to neither confirm nor deny the existence of records requested pursuant to the federal

Freedom of Information Act ( FOlA ). Petitioner asserts that he and the Mosque' ofIslarnic


43/47

, . ..~

insufficiency of the request, the information sought by petitioner, if possessed by respondent,

was exempt f i- D m FOIL disclosure pursuant t o POL §§ 87(2)(e)(i), 87(2)(e)(iii), 87(2)(e)(iv),

87(2)([), 87(2)(b) and 89(2)(b); 87(2)(g), and 87(2)(a).

On July 19, 2013, petitioner appealed respondents' determination by disputing the claim

of facial insufficiency and maintaining that the June 28, 2013 response constituted a blanket

denial which was not supported by facts or law. In a reply dated August 7, 20l3, respondents

denied petitioners appeal and again claimed that the request was facially insuffioient.

Respondents also referred to a failure by petitioner to reasonably describe the records sought in

the request, an d cited to FOIL exemptions POL §§ 87(2)(a), (b), (e), (f), (g) an d 89(2)(b).

Petitioner was advised that he had four mouths to commence

an

Article 78 proceeding to review

respondents'determination. On November 26,2013, petitioner filed the instant petition for relief

pursuant to CPLR Article 78. On April2, 2014, respondents filed a cross-motion to dismiss the

petition pursuant to CPLR 7804([). Oral argument was hejd on June 24,2014.

The purpose of FOIL, found in Article 6 of the Public Officers Law, is to shed l ight Oll

government decision-making, which in tum permits the electorate to make informed choices

regarding

gove rnmenta l .

activities and facilitates exposure

of w as t e,

negligence

and

abuse.

En'£Q,reCollege Bookstoresv. Auxiliary Serv. Con:l. of State University of New York at

Farmingdale, 87 N.Y.2d 410, 416 (1995). Exemptions are narrowly construed and the agency

seeking to prevent disclosure bears the burden of demonstrating that the requested material falls

squarely within an exemption by articulating a particularized and specific

justification

for

denying access. Matter of Schenectady County Socy. for The Prevention of Cruelty To

Animals, Inc. v. Mills, 74 A.D.3d 1417,1418 (3

rd

Dept. 2010).

When analyzing and deciding issues pertaining to FOIL exemptions patterned after the

federal FOIA, New York courts may look to federal case law for guidance. Hawkins v.

Kurlander, 98 A.D.2d 14 (4

th

Dept. 1983) (citing Matter of Fink v. Lefkowitz; 47 N.Y.2d 567

[1979]). FOIL's legislative history .. .indicates that many of its provisions ... were patterned after


44/47

ship that was the subject of the FOrA request at issue in 'phillippi v. CIA, 546 F.2d 1009 (D.C.

Cir.1976).

Inorder to invoke a Glomar response an agency must tether its refusal to one of nine

FOrA exemptions. The burden is placed on the party resisting disclosure to demonstrate with

reasonably specific detail that the information being withheld logically falls within the claimed

exemption. Wilner, 592 F.3d at 73; Amnesty Internati9nal USA v. CIA, 728 F.Supp.2d 479

(S.D.N.Y.2010). Agencies may invoke

all

exemption independently and courts may uphold

agency action under one exemption without considering the applicability of the others. Larson

v, DeRt. of State, 565 F.3d 857, 862 (D.C. Ciro 2009). '

At issue in the, instant petition are FOIL exemptions fo r records that fall within the

following three categories: Ci)POL §§ 87(2)(e)(i) records compiled for law enforcement

purposes, which if disclosed, would interfere with law enforcement investigations; (ii)POL

§§ 87(2)(e)(iv) records compiled for law enforcement purposes, which if disclosed, would reveal

criminal investigative techniques or procedures; and (iii) POL §§ 87(2)(f) records, which if

disclosed, could endanger the life or safety of a person. FOlA contains similar exemptions;

found in

5

u.s.e.

§§ 552 (b)

7)

( exemption ? ), '

. .

Federal FOlA's exemption 7 applies to records or information compiled for law

enforcement purposes: National Day Laborer Organizing Network v. U.S. Immigration aud

Customs Enforcement Agency, 811 F,Supp.2d 713 (S.D.N.Y. 2011). Courts have generally

interpreted exemption 7 as applying to records that pertain to specific investigations conducted

by agencies, whether intemal or external, and whether created or collected by the agency-in

other words, investigatory files. IQ . at 744. The government or agency bears tbe burden to

demonstrate that

a

record is compiled for law enforcement purposes and that disclosure would

effectuate one or more of the specified harms. John Doe Agency v. John Doe Corp., 493 U.S.

146 (1989), Exemption 7 subdivisions (d) (e) and (f) are relevant to the instant case. . .


45/47

l .- .•... --~...

5 U.S.C.

§

552(b)(7)(f).

Exempt ion

7(í)

h as b een in vo ked to p ro tect in div id ua ls in vo lv ed in la w

e nfo rc em e nt in v es tig atio ns a nd tria ls , a s o ffic ia ls a nd a s p riv ate c itize ns p ro v id in g in fo rm a tio n

an d g iv in g testim o ny. Am erican C iv il L ib erties Union v . D epartm en t o f D efense , 389

F.Supp .2d 547 (S .D .N .Y . 2 00 5).

W hen estab lish in g a G lo mar resp on se , ag en cie s su bm it affid av its th at d escrib e th e

ju stific atio ns fo r n on dis clo su re w ith re as on ab ly s pe cific d eta il, d em o ns tra te th at th e in fo rm a tio n

w i th h el d l og ic a ll y falls w ith in th e cla im ed ex em ptio n, an d are n ot c on tro verted b y eith er co ntrary

ev id en ce in th e reco rd n or b y ev id en ce o f ag en cy b ad fa ith . W iln er,

592

F.3d

at

73 .

Conclusory

affid av its th at m erely recite sta tu to ry stan dard s> o r are o ve rly v ag ue o r sw eep in g w ill

no t, s tand ing a lone , carry the agency s burden . Larson v . Departm en t o f S ta te ,

565

F.3d 857

(D,C.

C iro 2009). O n the issu e of n ation al security , co urts m ust acco rd substan tia l w eigh t to an

a ge nc y s a ffid av it c on ce rn in g th e d eta ils o f th e c la ss ifie d

status

ofthe d ispu ted record . W olf v ,,

CIA, 473 F.3d 37 0 (D .C . Ciro 2007) ..A lth ou gh fed era l cases n ote that a co urt m u st àcco rd

s ub sta ntia l w e ig ht to th e a ge nc y s a ffid av its , th is c OU l io nly lo ok s to fe de ra l c as es fo r g uid an ce

in in te rp re tin g th e req uire men t an d is n ot req uire d to g iv e th e sam e su bstan tia l w eig ht

to

th e

affid av its . S ee D av is v . U n ited S ta tes D ep t of Homeland Sec., 2013 U.s. Dist .LEXIS 91386,

14,33

(E .D.N,Y.

JUlle27, 2013).· .

R esp on den ts h av e in vo ked a G lo mar- like .resp on se th ro ug h th e affid av it o f T ho m as

G ala ti, C hief o f th e In te llig en ce B ureau fo r th e N ew Y ork C ity Po lice D ep artm en t ( NYPD ),

w h ic h te th ers re sp on de nts re fu sa l to d is clo se th e e xis te nc e o f re sp on siv e n ic ord s to th re e FOIL

exem ptio ns. R espon den ts m eet the ir bu rd en to issue a G lom ar respon se , se t by the federa l

c ou rts , b y d es crib in g g en eric ris ks p os ed b y d is clo su re , in clu din g undermining counter- terror ism

o pera tio ns, co m pro misin g th e in te llig en ce cap ab ilities o f th e NYPD , an d d isclo sin g so urces o f

th e in fo rm atio n o f th e

NYPD.

S ee A sia n

Am.

, Le g al De f.

&

Edue.

Fund v . New York

City

Police

D..£p.t . ,

41 Mise.3d 471, 476 (N .Y . S up . C t. 2013).


46/47

'~ .~

,.~

.

~.

_.~

-. ,-

~

_

.

FOlA applies only to federal and not state agencies. Reed v. Medford Fire Dept., 806

F.Supp.2d 594, 607 (E.D.N.Y. 2011) citing Grand Cent. Partnership, Inc. v. Cuomo, 166

F.3d 473 (2nd Gir. 1999). Respondents are correct that FOIL is pattemed after FOlA, but

federal and New York state case law demonstrate that FOlA is not intended for state agencies.

It

should follow that when a local agency such as the NYPD is replying to a FOIL request, the

Glomar doctrine is similarly inapplicable.' Moreover, the Second Circuit has explicitly stated

that it is beyond question that FOlA applies only to federal and not to state agencies. Reed v.

Medford Fire DeRt., 806 F.Supp.2d 594, 607 (E.D.N.Y. 2011) citing Gi'and Cent.

Partnersbip_JQc. v. Cuomo, 166 F.3d 473 (2nd Ciro 1999).

However, in a case of apparent first impression on these very narrow issues involving

three (3) FOIL exemptions applied to the unique facts and circumstances of this Article 78

proceeding, this court looks to the holdings of other jurisdictions for guidance since the current

issues have never been squarely decided and, thus, there is no precedent to follow. Respondents

have sufficiently demonstrated that applying the Glomar doctrine to petitioner's FOIL request is

in keeping with the spirit of similar appellate court cases. Indeed, an examination of prior court

rulings with parallels to the instant petition, combined with well-reasoned.legalargumentsput

forth by respondents, lead this

court-to

conclude that respondentadeoision 110tto reveal whether

documents .respónsive to petitioner's FOIL request èxist shoùld not-be disturbed as it has a

rational basis in the law.

Accordingly, it is hereby,

ADJUDGED that petitioner's application for an order pursuant to C.P.L.R. Artide 78 is

denied, without costs and disbursements to either party. The cross motion by respondents to

dismiss the petition is granted.

Dated: September 11,2014


47/47

;

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IndexNo: 101559/2013

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY

or

NEW YORK:

TAUB W~ABDUR-RASHID,

Petitioners,

For a Judgment Pursuant toC.P.LR- Art ic le 78,

-against-

Y

T NEW YOR K CIT Y POLIC E DEPART MENT , AND

RAYMOND KELL Y, IN HIS OFFICIAL CAPACITY AS

COMMISSIONER OF THE NEW YORK CITY POLICE

DEPARTMENT,

Redpondents

DECISiON AND JUDGi\: ENT

M I C H E L C R D O Z O

C or po ra tio n C ou ns el o f th e C it y o f N e w Y or k

Of Counsel: Jeffrey Dantowitz

Tel: 212788-0876

D u e a nd t im el y s er vi ce is he reby adm i t te d .

New Y ork, N.Y . 200 ..

. . E sq .

_ -

Attorney for .

r F L E D

SEP 252 01 4

AT i ¿~2.gF M

N Y '

co .

CU~S OFF ICE

abdul-rashid v. nypd amicus brief

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