Hashmi v. New York City Police Department
998 N.Y.S.2d 596
N.Y. Sup. Ct.2014Background
- Petitioner Samir Hashmi (former Rutgers student and MSA treasurer) submitted a FOIL request (Oct 2012) seeking NYPD records about alleged surveillance/investigation of him and the Rutgers Muslim Student Association.
- The NYPD refused to confirm or deny whether responsive records exist, asserting that acknowledgment would harm counterterrorism investigations and endanger sources/techniques.
- NYPD’s administrative denial invoked multiple FOIL exemptions (law enforcement, privacy, confidential sources, investigatory techniques) but did not produce a Vaughn index or admit existence of records; the appeals officer upheld the denial.
- Respondents urged the court to adopt the federal Glomar doctrine (neither confirm nor deny) under FOIA, arguing that even acknowledging existence of records would jeopardize public safety and investigative efficacy.
- Court considered FOIL’s disclosure presumption and procedures (including in camera review and Vaughn-type oversight) and declined to graft the federal Glomar doctrine onto FOIL, denying respondents’ motion to dismiss and ordering them to answer the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY courts should adopt the federal Glomar doctrine under FOIL | Hashmi: FOIL requires agencies to acknowledge existence; Glomar would deny transparency and review | NYPD: Glomar is necessary to prevent disclosure that would alert or help terrorists; mere acknowledgment causes harm | Court: Declines to adopt Glomar; FOIL’s existing exemptions and in camera review suffice; leave change to Legislature |
| Whether FOIL requires an agency to acknowledge existence of responsive records before claiming exemptions | Hashmi: FOIL and precedent require acknowledgment and court/in camera review to test exemptions | NYPD: Acknowledgment itself can cause harm and thus should be avoidable via Glomar response | Court: Affirms FOIL’s framework—agency must confront exemptions and the court can inspect; Glomar not incorporated |
| Whether press/public disclosures of an NYPD program waive the agency’s ability to assert secrecy | Hashmi: Public reporting undermines secrecy and supports disclosure | NYPD: Public reports do not constitute official acknowledgment sufficient to pierce Glomar-type secrecy | Court: Notes federal Glomar waiver standards are narrow and legislative adoption might choose differently; not adopted by court |
| Whether adopting Glomar would be consistent with FOIL’s text, purpose, and existing state exemptions | Hashmi: FOIL’s presumption of openness and narrow exemptions counsel against Glomar | NYPD: Practical exigency of counterterrorism justifies departure from ordinary FOIL procedures | Court: Finds Glomar would significantly alter FOIL’s balance; courts should not effect that change |
Key Cases Cited
- Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir.) (origin of Glomar neither-confirm-nor-deny response)
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir.) (early Glomar application)
- Wilner v. National Sec. Agency, 592 F.3d 60 (2d Cir.) (standards for Glomar tethering to exemptions; agency affidavits accorded substantial weight)
- Center for Constitutional Rights v. Central Intelligence Agency, 765 F.3d 161 (2d Cir.) (discusses Glomar and waiver/acknowledgment issues)
- Markowitz v. Serio, 11 N.Y.3d 43 (N.Y.) (FOIL’s presumption of openness; exemptions narrow)
- Xerox Corp. v. Town of Webster, 65 N.Y.2d 131 (N.Y.) (court must inspect withheld documents in camera if needed)