45 Misc. 3d 888
N.Y. Sup. Ct.2014Background
- Petitioner submitted FOIL request for all records relating to possible surveillance of him and the Mosque of Islamic Brotherhood.
- Respondents acknowledged the request and later advised additional time was needed to determine it.
- June 28, 2013 response denied the request for facial insufficiency and cited various FOIL exemptions.
- Petitioner appealed; respondents again denied and cited failure to reasonably describe records and multiple exemptions.
- November 26, 2013 petitioner filed this CPLR article 78 petition; respondents cross-moved to dismiss on April 2, 2014; oral argument held June 24, 2014.
- Court analyzes whether a Glomar-like response can be used by a local agency under FOIL and examines applicable FOIL exemptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glomar denial is available to a NYPD FOIL response | Glomar should not apply to state FOIL requests. | Glomar-like refusal is permissible when tied to FOIL exemptions to protect sources and methods. | Glomar-like response upheld under FOIL exemptions; petition denied. |
| Whether FOIL exemptions (e, f) justify withholding existence of records | Disclosures should be allowed if records exist and are not privileged. | Exemptions e(i), e(iv), and f justify non-disclosure to protect investigations and safety. | Exemptions properly applied; disclosure denied. |
| Scope of federal FOIA guidance in a state FOIL context | FOIA guidance should not control NY state FOIL decisions. | Federal analogies aid interpretation where appropriate, with tighter state limits. | Federal guidance used as guide; Glomar analysis tailored to FOIL context. |
Key Cases Cited
- Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 N.Y.2d 410 (1995) (FOIL exemptions narrowly construed; agency bears burden)
- Hawkins v Kurlander, 98 A.D.2d 14 (4th Dept 1983) (FOIL guidance from federal analogue)
- Fink v Lefkowitz, 47 N.Y.2d 567 (1979) (FOIL history and interpretation)
- Wilner v National Sec. Agency, 592 F.3d 60 (2d Cir 2010) (Glomar doctrine and burden to show exemption fit)
- Reed v Medford Fire Dept., Inc., 806 F. Supp. 2d 594 (E.D.N.Y. 2011) (FOIA applicability and state/federal distinctions)
- Grand Cent. Partnership, Inc. v Cuomo, 166 F.3d 473 (2d Cir 1999) (FOIA applicability to state actors)
- Gardels v. Central Intelligence Agency, 689 F.2d 1100 (D.C. Cir. 1982) (Glomar context and disclosure norms)
- National Day Laborer Org. Network v United States Imm. & Customs Enf’t Agency, 811 F. Supp. 2d 713 (S.D.N.Y. 2011) (Exemption 7 interpretation for law enforcement records)