Aletho News

NYPD gets itself a Glomar doctrine

Freedom of the Press Foundation | October 17, 2014

The New York Supreme Court dismissed a lawsuit against the NYPD challenging its refusal to confirm or deny the existence of records related to its surveillance of a New York City mosque. The case appears to be the first time that a court has affirmed a “Glomar doctrine” below the federal level. Adam Marshall from the Reporters Committee for Freedom of the Press has more:

The case, Abdur-Rashid v. New York City Police Department, involved a request by Imam Talib Abdur-Rashid for records regarding NYPD surveillance of himself and his mosque in New York City. The city refused to disclose to Mr. Abdur-Rashid whether any such records existed, and told him that even if they did exist, such records would be exempt under the New York Freedom of Information Law (“FOIL”).

In its decision, the court somewhat perplexingly acknowledged that according to federal and state case law, “[i]t should follow that when a local agency such as the NYPD is replying to a FOIL request, the Glomar doctrine is similarly inapplicable.” However, it then went on to state that as this was a case of first impression, the NYPD’s use of a Glomar response “is in keeping with the spirit of similar appellate court cases.” The court determined that “disclosing the existence of responsive records would reveal information concerning operations, methodologies, and sources of information of the NYPD, the resulting harm of which would allow individuals or groups to take counter-measures to avoid detection of illegal activity, undermining current and future NYPD investigations.” Therefore, it granted the NYPD’s motion to dismiss the case.

Elizabeth Kimundi, a lawyer for the firm of Omar T. Mohameddi, which is representing Abdur-Rashid, said over the phone that her firm is drafting an appeal.

That appeal will be one to watch, because this is a “case of first impression,” meaning that, if the ruling is upheld, it will set precedent in the state of New York. And it would be a bad precedent.

The Glomar doctrine gives agencies the obvious power to hide the existence of records, but it also allows agencies to short-circuit the appeal process, since requestors can’t file an appeal for records they don’t know exist. The NYPD consistently flouts both the spirit and letter of New York’s Freedom of Information Law. There is no expectation that it would use Glomar powers in good faith. A Glomar doctrine would just become another tool in Police Plaza One’s aggressive strategy to block and discourage FOIL requestors.

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October 19, 2014 - Posted by aletho | Civil Liberties, Corruption, Deception | NYPD, United States