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NY top court upholds NYPD response to surveillance records requests

ALBANY — In a sharply divided decision, New York’s top court on Thursday upheld the New York Police Department’s use of a legal tactic to conceal whether it was surveilling a group of Muslim-American activists.

The state Court of Appeals, in a 4-3 decision, said the NYPD was within its rights when, in response to activists’ records requests under the Freedom of Information Law, it said it could not “confirm nor deny” the existence of any surveillance records.

In sum, law enforcement can reject certain information requests without ever saying whether such records even exist.

The court said under “law enforcement and public safety statutory exemptions, the NYPD’s response neither confirming nor denying the existence of the investigative or surveillance records sought is compatible with FOIL and the policy underlying those exemptions, which is to provide the public access records without compromising a core function of government — the investigation, prevention and prosecution of crime.”

The case stemmed from a 2012 series of Associated Press articles detailing NYPD’s covert surveillance of Muslim communities in New York and New Jersey in the aftermath of the Sept. 11, 2001 attacks, according to court records. Two activists, Talib W. Abdur-Rashid and Samir Hashmi, filed Freedom of Information requests for any records relating to surveilling or investigating them personally.

According to records, Abdur-Rashid was imam at a Manhattan mosque; Hashmi a student at Rutgers University and a member of its Muslim Student Association. NYPD denied both requests without saying whether such records existed.

The “neither confirm nor deny” response was deployed by the CIA routinely and is known in legal circles as a “Glomar” response because it was initially used to conceal information about Howard Hughes’ “Glomar Explorer,” a ship built for the CIA to try to salvage a sunken Soviet submarine in the Pacific Ocean. When a journalist found out about the project and inquired, the CIA said it could “neither confirm nor deny” the information.

“The court is shifting the direction of FOIL” away from open government, said Omar T. Mohammedi, attorney for Hashmi and Abdur-Rashid.

He said the ruling gives police agencies a “blank check” and means “they don’t have to answer to anyone, including the courts” on information requests. He also said that “Glomar” responses have been applied mainly to national agencies, such as the FBI and CIA, where guidelines apply on when the response can be used.

An NYPD spokeswoman applauded the ruling and contended the agency has used the Glomar response sparingly.

In “a very few FOIL matters,” Sgt. Jessica McRorie said in an email, “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. To date, the NYPD has rarely used the legal Glomar doctrine.”

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