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NYPD forced to respond to FOIL request. NYS Supreme Court Justice Moulton refuses to adopt Glomar Do

Hashimi requested information from the NYPD related to the NYPD’s surveillance of Muslims. Hashimi believed that the NYPD maintained documentation on him to which the NYPD did not acknowledge, admit or deny. This request was an attempt to obtain answers or information from the NYPD. The appeal was brought after the request and an appeal.

Law (Exception to FOIL): Information that might disclose non-routine law enforcement techniques, or reveal the identities of undercover operatives or others providing confidential information to the police, are types of documents that are specifically exempt from FOIL disclosure. (See POL §§87 [2] [e] [iii], [iv].) However, in order to invoke these and other exemptions, FOIL provides that a law enforcement agency must first acknowledge the existence of responsive documents. Frequently, it is necessary for a court to conduct an in camera inspection of responsive documents for which an exemption is claimed in order to determine whether the agency has properly invoked that exemption.

The purpose of the Freedom of Information Law is to further governmental transparency and protect the public's right to know. Accordingly, any FOIL exemptions are interpreted narrowly. (See Matter of Markowitz v. Serio, 11 NY3d 43, 51 [2008].) FOIL imposes a broad duty of disclosure upon government agencies. Government records are "presumptively open" to the public, statutory exemptions to disclosure are "narrowly construed," and the agency must articulate a "particularized and specific justification" for nondisclosure. (Matter of New York Civil Liberties Union v. City of Schenectady, 2 NY3d 657, 661 [2004] [citing Matter of Gould v. New York City Police Dep't, 89 NY2d 267, 274-275] [1996] [internal quotations omitted].) The "narrowly constructed" categories of FOIL exemptions are collected at POL §§87 (2), 89 (2). (Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 [1979].) The burden on proving any exemption rests with the respondent agency. (Markowitz, supra, at 50-51.) If a court is unable to determine from the parties' papers whether withheld documents fall within the claimed exemptions, it must conduct its own inspection of the withheld documents in camera and order disclosure of any non exempt, appropriately redacted material. (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 133 [1985].)

Federal Law: In general, FOIA's procedures are similar to FOIL's: an individual or entity submits requests to a government agency and receives one of three responses. First, the agency may identify responsive records and release them. Second, it may determine that there are no responsive records and inform the requester of that fact. Third, it may identify responsive records but determine that all or part of the records are exempt from disclosure under one of FOIA's nine statutory exemptions, which are listed below. If an agency denies a FOIA request, there is the opportunity for administrative and then judicial review of the denial. In litigation, the defendant agency is typically required to provide the plaintiff requester with a detailed affidavit, called a Vaughn Index,6 which describes the contents of each withheld document (while shielding exempt information) and explaining the statutory basis for its exemption. The Vaughn Index thus provides the plaintiff requester with some information to contest the agency's basis for withholding documents or portions of documents, and allows the agency to carry its burden of proof. In camera inspection of the documents in question is often necessary to determine the validity of the claimed exemptions.

Glomar: The Glomar doctrine allows an agency to depart from this usual procedure. As noted above, the Glomar doctrine has as its premise that the existence or non-existence of documents is itself a fact protected by the exemptions to disclosure stated in FOIA, the federal analog of FOIL. A federal agency may issue a Glomar response if an answer to a FOIA inquiry confirming or denying the existence of responsive documents would cause the harm cognizable under a FOIA exemption. (See Center for Constitutional Rights v. CIA, 765 F3d 161, 164 n5 [2d Cir. 2014].)

A Glomar response must be "tether[ed]" to one of the nine FOIA exemptions. (Id.) Those exemptions are set forth at 5 USC §552 (b):

Analysis: After analyzing the exemptions under FOIA, case law demonstrates that the NYPD has been able to protect sensitive information very well within the existing procedures that FOIL currently provides. (See, eg, Matter of Bellamy v. New York City Police Department, 87 AD3d 874 [1st Dep't 2011]; Matter of Legal Aid Society v. New York City Police Department, 274 AD2d 207 [1st Dep't 2001]; Matter of Asian American Legal Defense and Educ. Fund v. New York City Police Dep't, 41 Misc3d 471; Urban Justice Center v. New York City Police Dep't, 2010 NY Misc Lexis 4258.) Crucially, these existing procedures provide some modicum of oversight by allowing the requester to formulate arguments in opposition to a claim of exemption, and by allowing a court to actually view responsive documents to ensure they fall within an exemption

Conclusion: "The insertion of the Glomar doctrine into FOIL would build an impregnable wall against disclosure of any information concerning the NYPD's anti-terrorism activities…A Glomar response virtually stifles an adversary proceeding…The adoption would effect a profound change to a statutory scheme that has been finely calibrated by the legislature. Therefore, the decision to adopt the Glomar doctrine is one better left to the State Legislature, not to the Judiciary."

The Case is Hashmi v. New York City Police Department, 101560/2013, NYLJ 1202676842363, at *1 (Sup., NY, Decided November 17, 2014).

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