Court of Appeals of the State of New York

Transcription

1 APL SUPREME COURT INDEX NO /13 & /13 Court of Appeals of the State of New York TALIB W. ABDUR-RASHID and SAMIR HASHMI, -against- Petitioners-Appellants, NEW YORK CITY POLICE DEPARTMENT, et al., For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules Respondents-Respondents. BRIEF OF AMICUS CURIAE THE NEW YORK CIVIL LIBERTIES UNION IN SUPPORT OF THE PETITIONERS-APPELLANTS Dated: June 1, 2017 Mariko Hirose Robert Hodgson Christopher Dunn New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY Tel: (212) Fax: (212) cdunn@nyclu.org Counsel for Amicus Curiae

2 DISCLOSURE STATEMENT The New York Civil Liberties Union is a non-profit 501(c)(4) organization and is the New York State affiliate of the American Civil Liberties Union. It has no subsidiaries or affiliates. i

3 STATUS OF RELATED LITIGATION The New York Civil Liberties Union Foundation filed Millions March NYC v N.Y.C. Police Dept., No /17, which also challenges the NYPD s invocation of the Glomar response, on May 23, 2017, in Supreme Court, New York County. The return date is June 23, ii

4 TABLE OF CONTENTS PRELIMINARY STATEMENT... 1 STATEMENT OF INTEREST OF AMICUS CURIAE... 3 FACTUAL AND PROCEDURAL BACKGROUND... 4 ARGUMENT... 8 I. THE FIRST DEPARTMENT S RECOGNITION OF THE GLOMAR DOCTRINE SIGNFICANTLY UNDERMINES FOIL S PROMISE OF TRANSPARENCY AND ACCOUNTABILITY II. IF THE COURT WERE TO RECOGNIZE THE GLOMAR DOCTRINE UNDER FOIL, IT SHOULD ADOPT ADDITIONAL SAFEGUARDS BEYOND THOSE PROPOSED BY THE NYPD CONCLUSION...22 iii

5 TABLE OF AUTHORITIES Cases Abdur-Rashid v N.Y.C. Police Dept. 45 Misc 3d 888 [2014]...passim Am. Civ. Liberties Union of New Jersey v Fed. Bur. of Investigation, 733 F3d 526 [3d Cir 2013]... 15, 16, 21 Am. Civ. Liberties Union of N. Cal. v U.S. Dept. of Justice, No. 12-CV MEJ, 2014 WL [ND Cal Sept. 30, 2014] Appeal docketed, No [9th Cir Nov. 26, 2014] Am. Civ. Liberties Union v Cent. Intelligence Agency, 710 F3d 422 [DC Cir 2013]... 18, 19, 20 Am. Civ. Liberties Union v Fed. Bur. of Investigation, 429 F Supp 2d 179 [D DC 2006]... 17, 18 Am. Civ. Liberties Union v Fed. Bur. of Investigation, 59 F Supp 3d 584 (SD NY 2014)... 4 Am. Civ. Liberties Union v Fed. Bur. of Investigation, No , 2013 WL [ND Cal 2013] Am. Civ. Liberties Union v U.S. Dept. of Defense, 389 F Supp 2d 547 [SD NY 2005] Am. Civ. Liberties Union v U.S. Dept. of Defense, 752 F Supp 2d 361 (SD NY 2010)... 4 Am. Ins. Assn. v Garamendi, 539 US 396 [2003] Fink v Lefkowitz, 47 NY2d 567 [1979] iv

6 Florez v Cent. Intelligence Agency, 829 F3d 178 [2d Cir 2016]... 21, 22 Gould v N.Y.C. Police Dept., 89 NY2d 267 [1996]... 10, 13, 16 Grabell v N.Y.C. Police Dept., 139 AD3d 477 [1st Dept 2016]... 9 Handschu v Special Services Div., No. 71 Civ 2203 [SD NY]... 3, 5, 20 Hashmi v N.Y.C. Police Dept., 46 Misc 3d 712 [Sup Ct, NY County 2014]... 7, 14, 15 Hassan v City of New York, 804 F3d 277 [3d Cir 2015]... 5, 12 Krikorian v Dept. of State, 984 F2d 461 [DC Cir 1993]... 14, 15 Leshner v Hynes, 19 NY3d 57 [2012] Millions March NYC v N.Y.C. Police Dept., No /17 [Sup Ct, New York County filed May 23, 2017]...passim N.Y. Civ. Liberties Union v City of Schenectady, 2 NY3d 657 [2004]... 4 N.Y. Civ. Liberties Union v Erie County Sheriff s Off., 47 Misc 3d 1201[A] [Sup Ct, Erie County Mar. 17, 2015]... 3, 4 N.Y. Civ. Liberties Union v N.Y.C. Police Dept., 2009 NY Misc LEXIS 2542 [Sup Ct, New York County June 26, 2009, No /08]... 9 N.Y. Civ. Liberties Union v N.Y.C. Police Dept., 74 AD3d 632 [1st Dept 2010]... 4 v

7 N.Y. Civ. Liberties Union v N.Y.C. Police Dept., No /16 [filed Sup Ct, NY County 2016]... 3 N.Y. Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336 [3d Dept 2011]... 4 N.Y. Times Co. v U.S. Dept. of Justice, 756 F3d 100 [2d Cir 2014]...passim Opinion amended on denial of reh, 758 F3d 436 [2d Cir 2014] Supplemented, 762 F3d 233 [2d Cir 2014]... 18, 19 Natl. Sec. Agency Telecom. Records Litig., 630 F Supp 2d 1092 [ND Cal 2009] Raza v City of New York, No. 13 Civ 3448 [ED NY]... 3, 5 Schulze v Fed. Bur. Of Investigation, No. 05 Civ. 0180, 2010 WL [ED Cal July 22, 2010] Sennett v Dept. of Justice, 962 F Supp 2d 270 [D DC 1996] Servicemembers Legal Def. Network v Dept. of Defense, 471 F Supp 2d 78 [D DC 2007] United States v Adams, 473 F Supp 2d 108 [D Me 2007] Voinche v Fed. Bur. of Investigation, 940 F Supp 323 [D DC 1996] Wilner v Natl. Sec. Agency, 592 F3d 60 [2d Cir 2009] Constitutional Provisions, Statutes, and Bills 50 USC [i][1] vi

8 N.Y. Statutes 73 [McKinney]... 13, 14 Public Officers Law 87 [2]... 9 Public Officers Law 89 [3] [a]... 9 Miscellaneous Associated Press, Highlights of AP s Pulitzer Prize-winning Probe into NYPD Intelligence Operations, (accessed May 23, 2017)... 4, 5 Intelligence Division Report, Deputy Commissioner s Briefing, Apr. 25, 2008, nypd/dci-briefing pdf N.Y.C. Dept. of Investigation, Office of the Inspector General for the NYPD (OIG-NYPD), An Investigation of NYPD s Compliance With Rules Governing Investigations of Political Activity 1 (2016), intel_report_823_final_for_release.pdf) N.Y.C. Police Department, Press Release, Remarks of Police Commissioner Raymond W. Kelly Before ABNY & Council on Foreign Relations Breakfast, Monday, Sept. 9, 2013, before_assn_for_better_ny_council_foreign_relations.shtml N.Y.C. Police Department, Intelligence Division, Weekly MSA Report, Nov. 22, 2006, nypd-msa-report.pdf Office of Bill de Blasio, Public Advocate for the City of New York, vii

9 Breaking Through Bureaucracy: Evaluating Government Responsiveness to Information Requests in New York City (Apr. 2013) 11 Shawn Musgrave, NYPD Social Media Policy Allows Officers to Create Fake Accounts to Monitor Online Activity, Muckrock, Feb. 6, 2015, news/archives/2015/feb/06/nypd-social-media-policy-allowscatfishing-proper-/ viii

10 PRELIMINARY STATEMENT This is an appeal from the First Department decision that wrote into the Freedom of Information Law an expansive view of the Glomar doctrine a judicially crafted federal doctrine of secrecy in which an agency served with a public records request refuses to confirm or deny the existence of records. For over forty years, agencies served with FOIL requests for records either produced responsive records, withheld them under the statutory exemptions, or certified that the records do not exist. But the NYPD refused to follow these procedures in responding to FOIL requests from two Muslim community members seeking records about themselves in the NYPD s files after they learned that the NYPD had engaged in widespread, suspicionless surveillance of their communities. Instead, the NYPD interjected a Glomar response and broadly asserted that the very existence or non-existence of records in its files about any individual or group, from any time period, would undermine the law enforcement interests cognized by the FOIL exemptions. The First Department accepted this claim with minimal scrutiny. Amicus curiae the New York Civil Liberties Union, which frequently relies on FOIL to protect civil rights and civil liberties in New York, including the right to be free of unwarranted government surveillance, submits this brief to address two points advanced by the NYPD in this appeal. First, the NYPD wrongly

11 dismisses the concerns that the recognition of Glomar under FOIL would significantly undermine FOIL s promise of transparency and accountability. Since the decision below, the NYCLU has already received a Glomar response from the NYPD in a FOIL request on behalf of a group of activists who sought the NYPD s policies and practices relating to the interference with and surveillance of the right to protest. This response represents a sea change in FOIL practice and it cloaks the NYPD in an additional layer of secrecy not contemplated by FOIL s carefully calibrated legislative scheme. Left unchecked, the Glomar doctrine can be and will be abused to strip FOIL of its effectiveness. Second, the NYPD proposes safeguards for limiting the Glomar doctrine, but those are insufficient to prevent the complete erosion of FOIL should this Court decide that FOIL permits a Glomar response. Specifically, in addition to the NYPD s proposals, this Court should require trial courts evaluating a Glomar response to employ a heightened presumption against the response, to reject blanket justifications, to apply a broader version of the official acknowledgment waiver, and to scrutinize the response in light of all evidence of relevant public information. Because the First Department failed to follow any of these safeguards in accepting the NYPD s far-reaching claim to secrecy in this case, the Court should vacate the decision and remand for further analysis even if it were to 2

12 recognize that Glomar responses may be available under FOIL in unusual circumstances. STATEMENT OF INTEREST OF AMICUS CURIAE Amicus curiae the NYCLU, the New York State affiliate of the American Civil Liberties Union, is a non-profit, non-partisan organization with over 160,000 members and supporters. 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. The NYCLU Foundation litigated Raza v City of New York (No. 13 Civ 3448 [ED NY]), the constitutional challenge to the NYPD s suspicionless surveillance of mosques and Muslim communities, and Handschu v Special Services Div. (No. 71 Civ 2203 [SD NY]), 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 public understanding of and dialogue on police practices. The NYCLU frequently litigates under FOIL to compel government agencies to comply with their obligations to produce records. 1 Attorneys from the NYCLU and the ACLU have 1 See e.g. N.Y. Civ. Liberties Union v N.Y.C. Police Dept., No /16 (filed Sup Ct, NY County 2016) (pending challenge to NYPD s refusal to disclose purchasing records related to Stingray cell phone surveillance equipment); N.Y. Civ. Liberties Union v Erie County Sheriff s 3

13 also litigated Glomar challenges under the Freedom of Information Act, 2 and the NYCLU Foundation currently represents the activist group Millions March NYC and its organizers in an Article 78 action to enforce a FOIL request for policies and practices relating to protest surveillance and interference (see Millions March NYC v N.Y.C. Police Dept., No /17 [Sup Ct, New York County filed May 23, 2017]). As such, the 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. FACTUAL AND PROCEDURAL BACKGROUND This case arises from the NYPD s extensive, suspicionless surveillance of the Muslim community in the New York City area, which was the subject of a series of Pulitzer-winning Associated Press articles (see e.g. Highlights of AP s Pulitzer Prize-winning Probe into NYPD Intelligence Operations, Associated Off., 47 Misc 3d 1201(A) (Sup Ct, Erie County Mar. 17, 2015) (granting request for records related to the Sheriff Office s acquisition and use of Stingray devices); N.Y. Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336 (3d Dept 2011) (granting fees in a case seeking records on the Saratgoa Police Department s use of tasers); N. Y. Civ. Liberties Union v N.Y.C. Police Dept., 74 AD3d 632 (1st Dept 2010) (granting request for records identifying the race of persons shot at but not hit by NYPD officers during a certain range of years); N. Y. Civ. Liberties Union v City of Schenectady, 2 NY3d 657 (2004) (reversing the lower court s denial of a FOIL request for incident reports pertaining to use of force by police officers). 2 See e.g. Am. Civ. Liberties Union v Fed. Bur. of Investigation, 59 F Supp 3d 584 (SDNY 2014) (seeking records, through a lawsuit filed by ACLU and NYCLU lawyers, relating to the federal government s bulk collection of any information, not just telephony metadata); Am. Civ. Liberties Union v U.S. Dept. of Defense, 752 F Supp 2d 361 (SDNY 2010) (seeking records, through a lawsuit filed by ACLU and NYCLU lawyers, relating to the federal government s detention and treatment of prisoners at an internment facility in Afghanistan). 4

14 Press) 3 and later of multiple lawsuits (see Hassan v City of New York, 804 F3d 277, 307 [3d Cir 2015]; Raza v City of New York, No. 13 Civ 3448 [ED NY]; Handschu v Special Services Division, No. 71 Civ 2203 [SD NY]). After reading the Associated Press articles and seeing that the organizations that they belong to had been subjected to surveillance, appellants Samir Hashmi and Imam Talib W. Abdur-Rashid filed FOIL requests seeking various categories of records relating to the NYPD s surveillance and investigation of them (FOIL request, Oct. 23, 2012, R ; aff of Abdur-Rashid 13, R. 404; verified petition of Samir Hashmi 12-21, R ). 4 3 Available at (accessed May 23, 2017). 4 Specifically, petitioner Samir Hashmi requested the following records: (1) All records related to any investigation of [petitioner], between , including the results of those 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 the NYPD; (4) All records related and relied upon on the surveillance of [petitioner] used by the NYPD; (5) All directives and/or memoranda sent or received by the NYPD related to surveillance of [petitioner] from ; (6) All directives and/or memoranda sent or received by the NYPD related to surveillance of the Rutgers Muslim Student Associations from ; and (7) All directives and/or memoranda sent or received by the NYPD related to the surveillance of [petitioner], as Treasurer for Rutgers Muslim Student Association from (FOIL Request, Oct. 23, 2012, R ). Petitioner Imam Talib W. Abdur-Rashid requested the following records: (1) All records related to any investigation of [petitioner] between , 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 upon on the surveillance of [petitioner] used by the NYPD; (5) All directives and/or memoranda sent or received by the NYDP related to surveillance of [petitioner] from ; (6) All records related to any investigation of [petitioner] in relation to his activities within the African American Community, between , including the results of these investigations; (7) All records related to any investigation of [petitioner] in relation to his civil rights 5

15 In response to these requests and the lawsuits filed to enforce them, the NYPD invoked the Glomar doctrine for the first time in the history of FOIL litigation. The NYPD argued that it could neither confirm nor deny the existence of records relating to the surveillance or investigation of any individuals, regardless of the individuals involved or the time frame or the context of the requests, because doing so would undermine its work and law enforcement interests (see aff of Thomas Galati 44-51, R [asserting, in the affidavit of Thomas Galati in Abdur-Rashid s case, that responding to the FOIL request would require the NYPD to reveal strands of law enforcement sensitive information by confirming whether petitioner or the groups and organizations with which he is affiliated are or had ever been the subject of an NYPD investigation or had been reported on within the context of an interaction with a subject of an investigation, that the FOIL request cannot be viewed in isolation, activities, between , including the results of those investigations; (8) All records related to any investigation of [petitioner] in relation to his activities as Amir of the Harlem Shura, between , including the results of those investigations; (9) All records related to any investigation of [petitioner] in relation to his activities as Imam of the Mosque of Islamic Brotherhood... between , including the results of those investigations; (10) All records related to any investigation of the Mosque of Islamic Brotherhood... between , including the results of those investigations; (11) All records related to the Mosque of Islamic Brotherhood... relied upon by the NYPD that led to any report being filed; (12) All records related to the surveillance of the Mosque of Islamic Brotherhood... by NYPD; (13) All records related and relied upon on the surveillance of the Mosque of Islamic Brotherhood... used by the NYPD; (14) All records related to any investigation of the activities of the Mosque of Islamic Brotherhood... between , including the results of those investigations; (15) All directives and/or memoranda sent or received by the NYPD related to surveillance of the Mosque of Islamic Brotherhood... from (FOIL Request, Oct. 23, 2012, R ). 6

16 and that secrecy unlimited in time is appropriate for these types of requests]; aff of Thomas Galati 39-49, R [making the same arguments in an affidavit also authored by Galati in Hashmi s case]). The trial court in Imam Abdur- Rashid s case accepted the response (see Abdur-Rashid v N.Y.C. Police Dept., 45 Misc 3d 888, [Sup Ct, NY County 2014], R ), whereas the court in Hashmi s case rejected the availability of a Glomar response under FOIL (see Hashmi v N.Y.C. Police Dept. 46 Misc 3d 712, [Sup Ct, NY County 2014], R ). On the consolidated appeal, the First Department sided with the Abdur- Rashid court and held that agencies may assert the Glomar doctrine under FOIL (Abdur-Rashid v N.Y.C. Police Dept., 140 AD 3d 419, 420 [1st Dept 2016], R ). While warning that the decision do[es] not suggest that any FOIL request for NYPD records would justify a Glomar response (id. at 421, R. 17), the court provided little guidance for curbing Glomar responses in future cases aside from requiring that agencies bear the burden of justifying the response (id., R ). The court summarily accepted the Glomar invocation in this case without parsing each of the requests and explaining how the NYPD has met its heavy burden to justify a Glomar response for each of the requests (see id. at , R ). 7

17 ARGUMENT I. THE FIRST DEPARTMENT S RECOGNITION OF THE GLOMAR DOCTRINE SIGNFICANTLY UNDERMINES FOIL S PROMISE OF TRANSPARENCY AND ACCOUNTABILITY. In urging affirmance of the First Department decision, the NYPD insists that there is no reason to think that the Glomar doctrine would undermine FOIL s purpose or effectiveness (brief for respondents at 41-42). 5 Not only are there reasons to think and predict that it would, there is evidence that it already has. The NYPD has already employed the holding below in a far-reaching manner to deny a FOIL request by the activist group Millions March NYC and its organizers for the NYPD s policies and practices relating to the interference with and the surveillance of communications of protestors and activists (see petition, Millions March NYC v N.Y.C. Police Dept., No /17, filed May 23, 2017). 6 The NYPD s Glomar responses in the Millions March NYC case and this case represent a sea change in FOIL practice. For forty years, FOIL has been interpreted, consistent with its text, to mandate that agencies either produce 5 See brief for respondents at ( [T]here is no reason to think that recognition of an agency s ability to use a circumscribed [Glomar] response in appropriate cases will sanction abuse or render agencies free from all judicial oversight ); id. at 3 (arguing that the response is compatible with FOIL s text and effectuates the statutory intent ). 6 Available at (last updated May 23, 2017). The request sought policies and practice documents relating to interference with the use of cell phones by protestors, monitoring of their social media accounts, and surveillance of other protest and organizing activities (see petition 21). 8

18 records, withhold records or portions thereof under one of the statutory exemptions (Public Officers Law 87 [2]), or, upon request, certify that requested records do not exist or cannot be found after a diligent search (id. 89 [3] [a]). The NYPD itself complied with this procedure in the past in responding to FOIL requests that, like the Millions March NYC request, sought records relating to its surveillance policies and practices (see e.g. Grabell v N.Y.C. Police Dept., 139 AD3d 477, 479 [1st Dept 2016] [affirming a lower court decision compelling the NYPD to release certain records relating to x-ray vans while permitting NYPD to withhold certain other records]; N.Y. Civ. Liberties Union v N.Y.C. Police Dept., 2009 NY Misc LEXIS 2542, at *3 [Sup Ct, NY County June 26, 2009, No /08] [requiring the NYPD to provide certain records relating to video surveillance in Lower Manhattan for in camera review]; NYCLU, Automatic License Plate Readers [providing certain records relating to automatic license plate readers]; 7 NYCLU, Stingrays [providing certain records relating to cell phone surveillance equipment and stating that certain records do not exist] 8 ). Even more 7 See Letter from New York Civil Liberties Union to New York Police Dept. (Jan. 7, 2014), available at (accessed May 23, 2017); Letter from Richard Mantellino, Records Access Officer, New York Police Dept. (Apr. 17, 2014), available at (accessed May 23, 2017). 8 See Letter from New York Civil Liberties Union to New York Police Dept. (Apr. 13, 2015), available at 9

19 tellingly, the NYPD appears to have previously disclosed under FOIL its policy on social media surveillance 9 a document directly responsive to one of Millions March NYC s requests (request 3[b], petition 21, Millions March NYC, No /17 [seeking [p]olicies or guidelines relating to the... monitoring [of social media accounts of protestors and protest groups] ]). Yet after the First Department decision in this case, the NYPD has claimed that it cannot even confirm or deny the existence of that policy document. The Glomarization of FOIL unleashed by the First Department will inevitably undermine FOIL s statutory purpose to promote open government and public accountability (Gould v N.Y.C. Police Dept., 89 NY2d 267, 274 [1996]). Glomar is the functional equivalent of a non-response and represents the most extreme departure from the policy purpose... to inform and promote transparency in governmental affairs (Schulze v Fed. Bur. of Investigation, No. 05 Civ. 0180, 2010 WL , at *20 [ED Cal July 22, 2010]). It results in excessive secrecy, inadequate court oversight, and unjustified obstacles to transparency, as the amici curiae of media organizations explain (see brief for Reporters Committee for (accessed May 23, 2017); Letter from Richard Mantellino, Records Access Officer, New York Police Dept. (Oct. 13, 2015), available at (accessed May 23, 2017). 9 See Shawn Musgrave, NYPD Social Media Policy Allows Officers to Create Fake Accounts to Monitor Online Activity, Muckrock, Feb. 6, 2015, available at 10

20 Freedom of the Press et al. as Amici Curiae Supporting Appellant, Abdur Rashid v N.Y.C. Police Dept., filed Apr. 14, 2017). Moreover, the availability of Glomar encourages the government tendency to favor secrecy (see Am. Civ. Liberties Union v U.S. Dept. of Defense, 389 F Supp 2d 547, 561 [SD NY 2005] [ Glomar responses... encourage an unfortunate tendency of government officials to overclassify information, frequently keeping secret that which the public already knows, or that which is more embarrassing than revelatory of intelligence sources or methods. ]). It requires little effort for an agency to insert one or two sentences of a conclusory, boilerplate Glomar response to a FOIL request as an additional ground for denial, as the NYPD did in the Millions March NYC case (petition 27, Millions March NYC, No /17). Yet, as the NYCLU knows well, that response requires the requestor to commit significant additional time and resources to litigate the denial resources that most requestors do not have. In the hands of an agency like the NYPD that has infamously shown little regard for FOIL, 10 Glomar threatens to eviscerate FOIL s purpose to bring sunshine and accountability to government operations. And the stakes for this secrecy are particularly high here given the NYPD s history of unwarranted surveillance of community members for their political activities and religious 10 See Office of Bill de Blasio, Public Advocate for the City of New York, Breaking Through Bureaucracy: Evaluating Government Responsiveness to Information Requests in New York City (Apr. 2013) (giving the NYPD an F grade in its compliance with FOIL), available at 11

21 beliefs. 11 The NYPD is in no position to dismiss the serious concerns of the appellants, the media organizations, and the NYCLU underlying their opposition to the First Department s recognition of the Glomar doctrine. II. IF THE COURT WERE TO RECOGNIZE THE GLOMAR DOCTRINE UNDER FOIL, IT SHOULD ADOPT ADDITIONAL SAFEGUARDS BEYOND THOSE PROPOSED BY THE NYPD. If the Court were to hold that the Glomar doctrine exists under FOIL, it should still vacate the First Department decision and impose strict safeguards to ensure that Glomar is available in only unusual circumstances, and only by a particularly persuasive affidavit (N.Y. Times Co. v U.S. Dept. of Justice, 756 F3d 100, 122 [2d Cir 2014] [hereinafter, Drone Memo FOIA ] [rejecting Glomar invocation for a memorandum setting forth lawfulness of U.S. targeted killing operations] [internal quotation marks omitted]). The NYPD, recognizing the need for such limitations on Glomar, proposes seven safeguards of its own: (1) Charging the agency with the burden of proof; (2) Requiring that the agency articulate a particularized and specific justification; (3) Requiring submission of a detailed public affidavit in the usual course; (4) Ensuring that the agency s justification is subject to adversarial testing; (5) Allowing the requestor to rebut the agency s justification with evidence that contradicts the agency s proffered reasons or shows that the agency is invoking the response in bad 11 See e.g. Hassan v City of New York, 804 F3d 277, 307 (3d Cir 2015) (denying the NYPD s motion to dismiss in a case alleging discrimination in the surveillance of Muslim communities); N.Y.C. Dept. of Investigation, Office of the Inspector General for the NYPD (OIG-NYPD), An Investigation of NYPD s Compliance With Rules Governing Investigations of Political Activity 1 (2016) (concluding that the NYPD was often non-compliant with a number of rules governing investigations into political activities), available at 12

22 faith; (6) Applying the official acknowledgment waiver where appropriate; and (7) Resolving doubts in favor of disclosure. (Brief for respondents at ) These safeguards proposed by the NYPD are necessary, but inadequate to stem the potential fallout for transparency should Glomar become available under FOIL. If the Court were to recognize the Glomar doctrine, it should adopt the safeguards proposed by the NYPD, but as supplemented and revised by the NYCLU below, and remand the case for further inquiry under these principles. 1. Heightened Presumption Against the Glomar Response. FOIL already requires a presumption against secrecy (Gould, 89 NY2d at 275), as the NYPD implicitly acknowledges (see brief for respondents at [recognizing that the agency bears the burden of proof and doubts should be resolved in favor of disclosure]). But this Court should apply an even stronger presumption against Glomar responses than the presumption that applies against ordinary invocations of FOIL exemptions and the presumption that applies against Glomar invocations in FOIA cases. This heightened presumption is appropriate because, as discussed above (see supra Part I), Glomar contravenes FOIL s text and its purpose to serve the public interest in transparency and accountability. Courts should avoid constructions of a statute that deviate from its text (N.Y. Statutes 73 [McKinney] [urging courts to avoid judicial legislation because they they do not sit in review of the discretion 13

23 of the Legislature or determine the expediency, wisdom, or propriety of its action on matters within its powers ]). They should also avoid constructions that tend[] to sacrifice or prejudice the public interests (id. 152). The heightened presumption is also appropriate under FOIL because federal courts have rarely recognized Glomar invocations under FOIA that are not tied to the uniquely executive purview of national security (Wilner v Natl. Sec. Agency, 592 F3d 60, 76 [2d Cir 2009] [internal quotation marks omitted]). As the trial court in Hashmi recognized: In the vast majority of Glomar cases, the invocation of the doctrine is tethered to FOIA exemptions 1 and 3. FOIA exemption 1 protects classified documents designated by Executive Order.... FOIA exemption 3 relates to documents specifically exempted from disclosure by statute. FOIA exemption 3 is most often used in Glomar responses in conjunction with legislation that created the federal government s national security apparatus. For example, two statutes frequently invoked in conjunction with exemption 3 in Glomar responses are the National Security Act of 1947, which exempts from disclosure intelligence sources and methods, (50 USC [i][1]) and the Central Intelligence Agency Act of 1949, which requires the CIA director to protect intelligence sources or methods. (Hashmi, 46 Misc 3d at 723, R. 43). In these cases involving national security secrets, federal courts have deferred to federal agencies expertise in those matters and their claimed need to invoke Glomar (see Wilner, 592 F3d at 76; see also Krikorian v Dept. of State, 984 F2d 461, 464 [DC Cir 1993] [noting deference to 14

24 the expertise of Executive agencies engaged in national security and foreign policy]). But these types of Glomar invocations based on national security matters, and the corresponding deference to agencies, have no analogs under FOIL (see Hashmi, 46 Misc 3d at , R. 43). FOIL governs records in the possession of state and local entities, which do not have the power to classify documents (id.). Moreover, the U.S. Constitution entrusts executive power over national security to the federal government, not to the state and local agencies subject to FOIL (see e.g. Am. Ins. Assn. v Garamendi, 539 US 396, 413, 429 [2003] [noting the President s independent authority in the areas of foreign policy and national security as well as the commitment of foreign relations powers to the national government]; In re Natl. Sec. Agency Telecom. Records Litig., 630 F Supp 2d 1092, 1102 [ND Cal 2009] [enjoining state investigations into electronic surveillance activities initiated by the NSA because intelligence activities in furtherance of national security goals are primarily the province of the federal government ]; United States v Adams, 473 F Supp 2d 108, 118 [D Me 2007] [noting the federal government s argument that matters of national security are exclusively federal in a case where the United States sought to intervene in a state regulatory investigation]). 12 This 12 In some cases courts have deferred to the FBI s national security justifications even where it did not tether its Glomar invocation to the national security exemptions (see e.g. Am. Civ. Liberties Union of New Jersey v Fed. Bur. of Investigation, 733 F3d 526, 531 [3d Cir 2013]). 15

25 doctrinal background justifies a stronger presumption against Glomar under FOIL than under FOIA. 2. Rejection of Blanket Justifications. The NYPD acknowledges that a Glomar response should be permitted only where the agency has met its burden of articulating a particularized and specific justification showing that the existence or non-existence of responsive records falls squarely within the ambit of a statutory exemption (brief for respondents at 43 [citing Fink v Lefkowitz, 47 NY2d 567, 571 [1979]]). This requirement, though necessary, would be meaningless if it could be satisfied by the First Department s acceptance of the NYPD s blanket Glomar invocation in this case as the NYPD argues (see brief for respondents at 49-57). The Court must reject such blanket justifications. An important corollary to FOIL s requirement of a particularized and specific justification for claiming an exemption is the principle that blanket exemptions for particular types of documents are inimical to FOIL s policy of open government (Gould, 89 NY2d at 275). Yet a blanket exemption for a category of records records relating to government surveillance or investigations of individuals, regardless of individuals involved, time frame, or context is exactly what the NYPD has claimed here (see e.g. brief for respondents at 56 [ Anyone Nonetheless, the FBI is a federal agency, and deference to it on national security matters should not translate to deference for state and local agencies (see id.). 16

26 who requested this information would meet with the same response.... ]; aff of Thomas Galati 46-47, R. 325 [asserting that secrecy unlimited in time is appropriate]). Under the NYPD s theory, no one has any right to know whether the NYPD had ever investigated or surveilled them. But that has never been the law or practice under FOIL or under FOIA (see Lesher v Hynes, 19 NY3d 57, 68 [2012] [holding that the exemption that protects against interference with law enforcement investigations ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course ]; see also Voinche v Fed. Bur. of Investigation, 940 F Supp 323, 326 [D DC 1996] [responding in part to records request related to the FBI s alleged wiretapping of the Supreme Court]; Sennett v Dept. of Justice, 962 F Supp 2d 270, 276, 286 [D DC 2013] [providing certain surveillance records requested from the FBI concerning the requestor and denying the FBI one of its claimed exemptions]; Servicemembers Legal Def. Network v Dept. of Defense, 471 F Supp 2d 78, 82 [D DC 2007] [providing certain surveillance records of individuals and groups opposed to government s policy on gays and lesbians in the military]; Am. Civ. Liberties Union v Fed. Bur. of Investigation, 429 F Supp 2d 179, 285 [D DC 2006] [providing certain FBI surveillance records of domestic political and religious organizations in response to 17

27 FOIA requests]). 13 The NYPD must provide more detail specific to each of the requests and to the context of the requests to meet its obligation for providing a particularized and specific justification for a Glomar response. 3. Broader Application of the Official Acknowledgment Waiver. The NYPD recognizes that official acknowledgment waives an agency s ability to invoke a Glomar response (brief for respondents at 44, 60-62), but offers a far too cramped view of that doctrine. Official acknowledgment waiver is not limited, as the NYPD argues, to instances where the FOIL request seeks the specific document that the government has already admitted exists (see id. at 60). Although the agency certainly waives the Glomar response in those cases, it also waives the response when it has already acknowledged the information that it seeks to conceal under Glomar. Two federal circuits, the D.C. Circuit and the Second Circuit, have explained the logic of this broader view of official acknowledgment in Am. Civ. Liberties Union v Cent. Intelligence Agency, 710 F3d 422, [DC Cir 2013] [hereinafter, Drone FOIA ] and Drone Memo FOIA, opinion amended on denial of reh, 758 F3d 436 [2d Cir 2014], supplemented, 762 F3d 233 [2d Cir 2014]. In those cases, the CIA claimed that it could neither confirm nor deny the existence of documents in its possession relating to targeted killing programs because the 13 Although some FOIA requests for investigatory or surveillance records have been met with Glomar responses, the point remains that there is no categorical FOIA exemption for such records. 18

28 response would reveal whether the CIA had an intelligence interest in or an operational role in such programs (see Drone FOIA, 710 F3d at 428; Drone Memo FOIA, 756 F.3d at 122). Although the CIA had not acknowledged the existence of specific responsive documents, the courts found that it had waived its Glomar response because the President and other officials had already acknowledged an intelligence interest in those operations (see Drone FOIA, 710 F3d at ; Drone Memo FOIA, 756 F3d at ). Viewed in this light, the question is not whether the NYPD has ever acknowledged the existence of responsive records. The NYPD has claimed that it cannot confirm or deny the existence of records because that would reveal the scope of their counterterrorism surveillance and investigations (aff of Thomas Galati 19-26, R ; aff of Thomas Galati 19-26, R ). But the NYPD has made a number of public statements already about the scope of its Muslim surveillance program. For example, 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. 14 Assistant Chief Thomas Galati testified in a deposition that the NYPD identified mosques throughout the city and the ethnic community or communities 14 Press Release, NYPD, Remarks of Police Commissioner Raymond W. Kelly Before ABNY & Council on Foreign Relations Breakfast, Monday, Sept. 9, 2013, available at _council_foreign_relations.shtml. 19

29 that would go to the mosque (deposition of Thomas Galati at 45:12-14, Handschu v Special Services Div., No. 71 Civ [June 28, 2012]; 15 see id. at 46:5-9 [ The purpose of the Demographics Unit and the Zone Assessment Unit was to identify mosques, to identify the ethnic community that would be associated with the mosques. ]). Where, as here, the NYPD has acknowledged the existence of a surveillance program, it is neither logical nor plausible to permit a Glomar response to a request for records regarding surveillance on a specific individual or an organization that clearly falls within the program s officially acknowledged scope (see Drone FOIA, 710 F3d at [rejecting Glomar even though no official has specifically stated that the CIA has documents relating to drone strikes because official statements render the justification for the Glomar response neither logical nor plausible ]). The Court should adopt this broader view of the official acknowledgment waiver. 4. Review of Relevant Public Information. The NYPD incorrectly asserts that public information relating to the subject of the FOIL request is irrelevant to the Glomar inquiry if the information does not derive from the agency that is the subject of the FOIL request (see brief for respondents at 62). Even in the absence of official acknowledgment, courts should 15 Available at 20

30 consider relevant public information in evaluating the validity of the Glomar response (see Florez v Cent. Intelligence Agency, 829 F3d 178, [2d Cir 2016] [remanding for the trial court to further examine the CIA s Glomar response where the FBI disclosed the existence of related, responsive records during the appeal]). Availability of public information on the topic of the FOIL request tends to undercut the claimed need for secrecy (see id.; see also Am. Civ. Liberties Union of N. Cal. v U.S. Dept. of Justice, No. 12-CV MEJ, 2014 WL , at *13-14 [ND Cal Sept. 30, 2014] [rejecting bid to conceal records relating to surveillance technology given the information publicly available, including through extensive media coverage], appeal docketed, No [9th Cir Nov. 26, 2014]; Am. Civ. Liberties Union v Fed. Bur. of Investigation, No , 2013 WL , at *9 [ND 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 ]). 16 Here, the volume of public information on the NYPD s Muslim surveillance program and its scope belies the NYPD s claimed need for Glomar. The Pulitzerwinning Associated Press articles on the NYPD s suspicionless surveillance program of the Muslim community included NYPD documentation that relates 16 Not every piece of public information, of course, would undermine the agency s justifications for Glomar (see e.g. Am. Civil Liberties Union of New Jersey, 733 F3d at ). Each piece of public information, however, should be considered relevant evidence for the Glomar claim (see Florez, 829 F3d at ). 21

31 specifically to the surveillance of the Mosque of Islamic Brotherhood and the Rutgers Muslim Student Association, the organizations to which the appellants belong. 17 Even if the NYPD has never officially verified the documents released by the Associated Press, 18 the publicity surrounding the program raises doubts that this is an unusual circumstance requiring a Glomar response (N.Y. Times Co., 756 F3d at 122). The Court should require trial courts to evaluate relevant public information in its review of Glomar responses. CONCLUSION Because the recognition of the Glomar doctrine would significantly undermine FOIL, the Court should vacate the First Department decision that adopted the doctrine with minimum guidance for future cases and minimum inquiry into this particular Glomar invocation. If the Court determines that Glomar responses are available under FOIL, it should remand the case to the trial court for further scrutiny of the NYPD s Glomar invocation in this case, applying the safeguards described above and proposed by the NYPD. 17 Intelligence Division Report, Deputy Commissioner s Briefing, Apr. 25, 2008, available at (stating that the NYPD was especially concerned with and keying on our convert mosques i.e. Ikhwa, Taqwa, Iqquamatideen and MIB (Mosque of Islamic Brotherhood) ); NYPD Intelligence Division, Weekly MSA Report, Nov. 22, 2006, available at 18 Amicus notes, however, that in the papers below the NYPD referred to the AP document that refers to Mosque of Islamic Brotherhood as NYPD document (Respondents Reply Memorandum of Law at 6 n 2, Abdur-Rashid, R. 414). 22

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