Matter of Abdur-Rashid v New York City Police Dept.Matter of Abdur-Rashid v New York City Police Dept.
v
New York City Police Department et al., Respondents.
In the Matter of Samir Hashmi, Appellant,
v
New York City Police Department et al., Respondents.
Argued February 6, 2018; decided March 29, 2018
Matter of Abdur-Rashid v New York City Police Dept., 140 AD3d 419, affirmed.
Chief Judge DiFiore.
The issue presented is whether an agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request (
The federal courts have long permitted federal agencies responding to Freedom of Information Act (
The NYPD‘s response, although styled as a motion to dismiss the petition in each case, did not assert a procedural objection but defended the FOIL responses on the merits. The agency explained the basis for its denial of the FOIL requests and its refusal to disclose whether it possessed responsive documents in a 22-page affidavit of its Chief of Intelligence, Thomas Galati. Without offering any specific information relating to petitioners, Chief Galati described the NYPD‘s ongoing and wide-ranging counterterrorism efforts, acknowledging that the agency was actively engaged in covert surveillance and other intelligence gathering in its effort to preempt acts of terrorism in New York City, which remains a prime target in the wake of the World Trade Center attacks. The Galati affidavit averred that disclosure of whether the NYPD possesses records responsive to the FOIL requests would necessarily reveal whether petitioners had been the subjects of its investigation,
The proceedings were assigned to different justices for resolution. In Abdur-Rashid, Supreme Court granted the NYPD‘s motion to dismiss and denied the petition, reasoning that the NYPD demonstrated that its response—including its refusal to acknowledge whether responsive records existed—was not prohibited by FOIL as the records sought were exempt from disclosure under the statute and the cases interpreting it (45 Misc 3d 888 [Sup Ct, NY County 2014]). In Hashmi, although not disputing that the content of responsive records may be exempt, Supreme Court, among other things, denied the motion to dismiss on the rationale that the NYPD‘s failure to acknowledge whether or not responsive records existed was impermissible under FOIL (46 Misc 3d 712 [Sup Ct, NY County 2014]). Hearing the cases together, the Appellate Division affirmed in Abdur-Rashid and, among other things, reversed the order denying the motion to dismiss in Hashmi, granting the motion and dismissing the petition (140 AD3d 419 [1st Dept 2016]). The Appellate Division reasoned that, through the affidavits of Chief Galati, the NYPD had “establish[ed] that confirming or denying the existence of the records would reveal whether petitioners or certain locations or organizations were the targets of surveillance, and would jeopardize NYPD investigations and counterterrorism efforts” in contravention of the law enforcement and public safety exemptions (see id. at 421). Thus, the Court held that NYPD‘s refusal to confirm or deny the existence of responsive records was consistent with FOIL and the cases construing it. We granted petitioners leave to appeal (28 NY3d 908 [2016]).
To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public (see
From the outset of FOIL, the legislature expressly exempted certain agency records from public access, recognizing that there is sometimes “a legitimate need on the part of government to keep some matters confidential” (Fink, 47 NY2d at 571). For example, the law enforcement exemption and the public safety exemption, which the NYPD relied on here, protect records that, if disclosed, would interfere with law enforcement investigations or judicial proceedings, reveal nonroutine criminal investigative techniques or endanger the
In Matter of Lesher v Hynes (19 NY3d 57, 60-61 [2012]), an author sought “[a]ny and all” records from a District Attorney‘s office concerning its pending prosecution of a defendant charged with sexual abuse who fled the country “one step ahead of an arrest warrant.” The District Attorney declined to turn over any records, broadly asserting that any records relevant to the pending prosecution—including correspondence with federal officials relating to extradition efforts—were protected from disclosure under the law enforcement exemption. Petitioner argued, among other things, that the District Attorney had not adequately explained how the release of records relating to a publicly acknowledged prosecution would interfere with law enforcement investigations or judicial proceedings. In rejecting that argument, we adopted the analysis in NLRB v Robbins Tire & Rubber Co. (437 US 214 [1978]) in which the United States Supreme Court held—interpreting its own analogous law enforcement exemption (
We recognized the need to protect investigative information in Lesher even though the existence of the criminal action was a matter of public record. Before criminal proceedings have commenced, the inherent dangers of premature disclosure are even greater. In fact, the need for government confidentiality may be at its zenith when a law enforcement agency is undertaking a covert investigation of individuals or organizations, where the lives of the public, cooperators and undercover officers may hang precariously in the balance and the reputation, livelihood or liberty of the subject may be at stake. This Court has never held that FOIL compels a law enforcement agency to reveal records relating to an ongoing criminal investigation of a particular individual or organization to the target, the press or anyone else—and the structure and purpose of the law enforcement and public safety exemptions in
The NYPD counters that this Court should follow the commonsense doctrine employed by the federal courts, which have recognized that it is permissible under the federal statutory scheme of FOIA for a federal agency to decline to acknowledge possession of responsive records when the fact that responsive records exist would itself reveal information protected under a FOIA exemption. Federal recognition of this policy dates back to Phillippi v Central Intelligence Agency (546 F2d 1009 [DC Cir 1976]), in which a reporter sought records from the CIA concerning its relationship with a vessel known as the Hughes Glomar Explorer, purportedly owned by a private corporation but believed to have been used by the CIA to gather information concerning sunken Russian submarines. The District of Columbia Circuit credited the CIA‘s explanation that, to require it to reveal whether it possessed records relating to the vessel would be tantamount to requiring it to reveal its connection to the vessel—a fact exempt from disclosure under FOIA exemptions 1 (
Although pointed FOIA requests analogous to the inquiries here are rare, the dangers of disclosure of the existence of an investigation of a particular person have been acknowledged under that statute. In Vazquez v United States Dept. of Justice (887 F Supp 2d 114 [DC Cir 2012], mot for summary affirmance granted 2013 WL 6818207, 2013 US App LEXIS 25854 [DC Cir, Dec. 18, 2013, No. 13-5197]), plaintiff sought records about him maintained by the FBI‘s National Crime Information Center (NCIC), a compilation of 19 separate databases containing investigative material compiled for law enforcement purposes. In upholding the use of a Glomar response under FOIA law enforcement exemption 7 (E), the court credited the FBI‘s assertion
“that [p]ublic confirmation of NCIC transactions would alert individuals that they are the subject of an investigation as well as reveal[ ] the identity of the investigative agency. With this information, individuals could modify their criminal behavior, thereby
preventing detection by law enforcement agencies and risking circumvention of the law. . . . In other words, persons knowing that they are being investigated by a law enforcement entity, which the requested information would reveal, could reasonably be expected to use the information to circumvent the law. Conversely, . . . knowledge that there have been no NCIC checks run [would indicate the person] is not on law enforcement‘s radar [permitting them] to continue to engage in unlawful endeavors with renewed vigor” (887 F Supp 2d at 117-118 [internal quotation marks omitted]).
FOIA cases involving counterintelligence records are also particularly instructive. In Hunt v Central Intelligence Agency (981 F2d 1116 [9th Cir 1992]), a defendant on trial for murder sought disclosure from the CIA of records regarding his victim, an Iranian national. The Ninth Circuit upheld the CIA‘s use of a Glomar response, crediting its explanation in supporting affidavits that
“the disclosure of the existence or non-existence of documents must not be viewed in isolation but rather as one tile in a mosaic of intelligence gathering. Through the CIA‘s disclosure of the existence or non-existence of records on particular individuals, a FOIA requester could make the information public or otherwise available to counter-intelligence operations from other nations. . . . [T]hose experts could then determine the contours and gaps of CIA intelligence operations and make informed judgments as to the identities of probable sources and targets [who] . . .”
“could find themselves under suspicion and in grave danger. . . . [P]otential future sources would be reluctant to come forward; targets of intelligence scrutiny would be alerted and could take additional precautions; and foreign operatives could learn whether or not the CIA was aware of their activities” (981 F2d at 1119).
The same risk has been recognized when the subject of the request is not an individual but a specific organization or institution. For example, in Gardels v Central Intelligence Agency (689 F2d 1100 [DC Cir 1982]), the FOIA request sought records from the CIA relating to its past and present relationships with the University of California. The District of Columbia Circuit emphasized that the specific request could not be viewed in isolation, particularly there where the CIA had received 125 similar requests seeking information relating to about 100 American colleges and universities. Acknowledgment of the existence of records concerning any one institution, when aggregated, could reveal substantial information relating to the CIA‘s covert activities and assist foreign intelligence
Given that our statute was modeled after FOIA, we have repeatedly looked to federal precedent when interpreting FOIL, particularly in relation to the law enforcement exemptions (see Matter of Friedman v Rice, 30 NY3d 461 [2017]; Madeiros, 30 NY3d 67; Lesher, 19 NY3d 57). And while it is not necessary for us to consider on this appeal whether there are other circumstances when a Glomar-type response might be permissible under FOIL, the analysis in the federal cases is instructive in the unique situation presented here where a targeted request seeks records concerning a specific individual‘s involvement in a pending NYPD investigation. As these cases demonstrate, there are indeed occasions when, due in large part to the precise manner in which the FOIL request is structured, an interpretation of the statute that compels a law enforcement agency to reveal that responsive records exist with respect to a specific individual or organization would, in effect, force the agency to disclose substantive information that is protected under FOIL‘s law enforcement and public safety exemptions. Just as requiring the CIA to state whether it possesses documents relating to the Hughes Glomar Explorer would reveal whether or not it was
It is the rare case where, due to the surrounding circumstances and the manner in which a FOIL request is structured, acknowledging that any responsive records exist would, itself, reveal information tethered to a narrow exemption under FOIL. But when a FOIL request seeks to ascertain if a specific person or organization is under investigation by the NYPD Intelligence Bureau, such a response is entirely consistent with the purpose and structure of our statute. To recognize that those unusual circumstances coalesce here does not create a broad judicial exemption as the dissent erroneously claims. Rather, we are applying a commonsense interpretation of the relevant statutory language to give full effect to the law enforcement and public safety exemptions carefully crafted by the legislature, as interpreted for decades by this Court. A model of understatement, the dissent recognizes that requiring an agency to acknowledge the existence of records in these circumstances “may have concerning implications” (dissenting op at 270-271) but protests that the Court is powerless to avoid such a result—that only the legislature can intervene. We disagree. The legislature has already acted by adopting the law enforcement and public safety exemptions—the task of
Here, in assessing the propriety of the agency‘s refusal to reveal whether responsive records exist, we begin with the requests themselves, which were both extremely specific and quite unusual. Indeed, we know of no other FOIL case in which individuals who had never been arrested, involved in a police confrontation or formally charged have asked a police agency to acknowledge if they were under investigation. Abdur-Rashid requested records relating to any “investigation” or “surveillance” of himself, individually or in his capacity as leader of a religious institution. Hashmi similarly sought all records relating to “investigation” or “surveillance” of himself or a student group with which he is associated. In their petitions, both men referred to news articles describing the NYPD‘s ongoing counterterrorism investigation and surveillance program.7 Petitioners seek to learn their connection, if any,
Petitioners’ requests for information concerning a recent or ongoing investigation by a law enforcement agency implicate the core concerns underlying the law enforcement and public safety exemptions. Under Lesher, the agency could meet its obligation to provide a factual basis for the exemptions by identifying the generic kind of records for which the exemption was claimed and the generic risks posed by disclosure of those types of records. The Galati affidavits fulfilled that requirement. Without revealing any specific information about these petitioners (which it could not do without revealing the very information it claimed was exempt), the affidavit explained in extensive detail how disclosing the information sought—i.e., who has been the subject of investigation or surveillance—would imperil its ongoing counterterrorism efforts to protect New York City.
Chief Galati noted that, unlike other NYPD units that investigate crimes after they have occurred (essentially gathering evidence to reconstruct a past event), the intelligence unit of the NYPD is tasked with the objective to be preemptive—amassing information to deter, detect and thwart future terrorist activity. He described numerous, recent cases involving terrorist activity in New York City, demonstrating that the City remains a primary target for terrorist attacks and that, working jointly and sharing information with other state and federal law enforcement agencies, his unit plays a pivotal role in identifying terrorist plots and arresting those involved in order to prevent planned attacks designed to cause mass casualties. The unit gathers information from a myriad of sources, from undercover operations and confidential informants to open sources, as well as a well-publicized counterterrorism hotline, welcoming any and all leads from the public on a promise of confidentiality. Chief Galati averred that it was essential to the
Further, Chief Galati asserted that the FOIL requests under review here could not be viewed in isolation, noting that the NYPD was beginning to receive similar requests from others. In particular, Chief Galati highlighted the recent initiation of a mass FOIL campaign by a local organization, which encouraged and assisted constituents in submitting requests to the NYPD “FOILing” themselves. The affidavit explained that, if records from disparate requests were aggregated, this would place any individual response into a larger mosaic which could be used to analyze NYPD‘s counterterrorism operation and identify areas of focus and sources of information. Critically, Chief Galati contended that compelling the NYPD to acknowledge that it possesses records responsive to the request—even if it did not turn over documents—would reveal whether petitioners or the organizations with which they are affiliated were subjects of NYPD investigative interest, information that is itself exempt from disclosure.
The Appellate Division did not err in determining that the Galati affidavit established a factual basis for the exemptions claimed under the circumstances presented. This is true even though the NYPD does not claim (nor could it, consistent with its desire to maintain secrecy) that petitioners or their organizations are connected in any way with its pending counterterrorism investigation. As the federal courts have recognized (see generally Gardels, 689 F2d 1100), a Glomar-type response would be ineffective if it were permissible only when the agency possesses responsive records, even though that is the situation when it is most evident that revealing the existence of the records would damage a pending investigation. Such a myopic approach would prove unworkable because it would not be difficult to distinguish between individuals and organizations who are under investigation (who would receive a Glomar-type response) and those who are not (who would be
Finally, petitioners argue that even if—as we have concluded—an agency can decline to acknowledge that responsive records exist in these unique circumstances, various safeguards recognized by the federal courts preclude the NYPD‘s use of such a response here. For example, petitioners contend that an agency cannot decline to reveal the existence of records when it has publicly revealed the information for which it is claiming an exemption. They further argue that the NYPD invoked Glomar in a bad faith effort to cover up embarrassing or unlawful acts, such as its use of racial or religious profiling. We caution that we have no occasion in this case to consider whether a Glomar-type response is available under FOIL in any circumstance other than that presented here where the request involves an ongoing criminal investigation, nor do we adopt wholesale the approach taken by the federal courts. That being said, we agree that a police agency that has already revealed the records sought and for which it claims an exemption cannot credibly support such a response. Here, petitioners have not come forward with any evidence that the NYPD publicly acknowledged that it investigated or surveilled petitioners or the organizations referenced in their specific FOIL requests.
As for bad faith, the strongest safeguard against misuse of a FOIL exemption is the factual showing requirement. An agency denying a FOIL request must establish a bona fide, factual basis for the exemptions claimed and any evidence that undermines that showing is material to the court‘s assessment of the adequacy of the agency‘s submission—including a claim of bad faith. Although there is no language in the statute authorizing the procedure, New York courts have interpreted FOIL to permit in camera review of sensitive or confidential materials when the court deems such a procedure appropriate or necessary in a particular case to test the legitimacy of a claim of confidentiality or to oversee the redaction process in cases where portions of a record are subject to disclosure (see e.g. Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 490 [2005]).8
Moreover, other than general allegations arising from news reports, petitioners offered no evidence that the NYPD‘s response to these particular requests is a function of bad faith, rather than the legitimate law enforcement concerns identified in the comprehensive Galati affidavit. Notably, the Galati affidavit set forth the types of investigative activities which the NYPD is authorized to conduct in furtherance of its goals of detecting or preventing terrorist activities, none of which hinted at an insidious type of surveillance (see e.g. People v Capolongo, 85 NY2d 151, 160 [1995]). Here, the Galati affidavit was properly deemed sufficient to meet the factual basis requirement for the invocation of the statutory exemption. However, there may well be instances when the FOIL request is more general, either in terms of its subject or the nature of the materials sought, where the propriety of a Glomar-type response is less clear from the law enforcement agency affidavit, or where indicia of improper motive significantly undermine the asserted basis for the exemption. In that event, some form of in camera review may be warranted,
It bears emphasizing, as is also true under FOIA, that if an agency establishes that the records sought fall within a FOIL exemption adopted by the legislature, the courts cannot order disclosure based on some other public policy concern asserted by a party or the court (see Hanig, 79 NY2d at 112; see Minier v Central Intelligence Agency, 88 F3d 796, 802-803 [9th Cir 1996]).
For all of these reasons, under the circumstances presented here, where necessary to give full effect to the law enforcement and public safety statutory exemptions, the NYPD‘s response neither confirming nor denying the existence of the investigative or surveillance records sought is compatible with FOIL and the policy underlying those exemptions, which is to provide the public access to records without compromising a core function of government—the investigation, prevention and prosecution of crime.
Accordingly, in each case, the order of the Appellate Division should be affirmed, with costs.
Wilson, J. (concurring in part and dissenting in part). We have not before been asked whether a governmental agency may, in response to a Freedom of Information Law (
I write separately to explain what the process compelled by FOIL and our prior decisions should be. In this case, that process would result in a partial remittal. I have organized my explanation as follows. First, neither FOIL nor our decisional law interpreting it requires an agency to confirm or deny the existence of protected documents if such confirmation or denial would itself be protected by an exemption. Second, conforming our FOIL doctrine to the FOIA Glomar doctrine is inappropriate, because of the unique foreign policy concerns underlying the Glomar doctrine and the criticism of federal decisions expanding that doctrine into more mundane areas. Third, agencies must evaluate the specific terms of each FOIL request and, if appropriate, make partial responses differentiated by the scope of the request and the nature of documents the agency possesses. Fourth, the procedural safeguards proffered
I.
I begin with FOIL‘s language. Within five business days of receiving a written request for records, an agency “[i] shall make such record available to the person requesting it, [ii] deny such request in writing or [iii] furnish a written acknowledgement of the receipt of such request and a statement of the approximate date . . . when such request will be granted or denied” (
As a second step, any person whose request is denied may take an administrative appeal to the agency‘s director or her designee, who then has 10 business days to provide the responsive records or “fully explain in writing to the person requesting the record the reasons for further denial” (
As a third step, a person displeased with the result of the second step (or whose administrative appeal is not timely resolved) may commence an article 78 petition in Supreme Court (
The statute is silent as to any requirements specifically pertaining to such an article 78 challenge. Although FOIL‘s process requires agencies to explain why any records they withhold are exempt from disclosure, no provision in the statute
II.
The majority‘s reliance on the federal Glomar doctrine is misplaced. Yes, FOIL was structurally modeled on FOIA. However, as the dissent explains, the Glomar doctrine arises not from FOIA‘s law enforcement exemption, but from FOIA‘s exemption of documents “specifically authorized under criteria
Glomar‘s peculiar history has had a profound effect on its logic. FOIA exemptions 1 and 3, together with certain national security-related statutes, create a “near-blanket . . . exemption” for properly classified materials and CIA records (Minier v Central Intelligence Agency, 88 F3d 796, 801 [9th Cir 1996]). The exemptions’ near-blanket nature opens the door to the federal judiciary‘s hands-off approach. The national security-related content of FOIA exemptions 1 and 3, coupled with a sense of the uniquely executive purview of national security, pushes judges through it: federal courts consistently reaffirm their “deferential posture” in Glomar cases (Larson v Department of State, 565 F3d 857, 865 [DC Cir 2009]). By way of example, the U.S. Court of Appeals for the D.C. Circuit believes that it is “in an extremely poor position to second-guess the predictive judgments made by the government‘s intelligence agencies regarding questions such as whether a country‘s changed political climate has yet neutralized the risk of harm to national security posed by disclosing particular intelligence sources” (id. [internal quotation marks omitted]).
The federal courts’ routine deference to Glomar responses “has been justified on both constitutional and prudential separation of powers grounds: Courts opine that protection of national security information is entrusted to the executive under Article II of the Constitution and that courts lack the competence to assess executive determinations to withhold national security information” (Nathan Freed Wessler, “[We] Can Neither Confirm Nor Deny the Existence or Nonexistence of Records Responsive to Your Request“: Reforming the Glomar Response Under FOIA, 85 NYU L Rev 1381, 1383, 1398 [2010]). It has also been criticized for resting on “concerns about comparative competence [that] are overblown and are outweighed by the institutional conflict of interest that arises when the executive branch makes essentially unreviewed decisions to withhold its own records from disclosure” (id.).
Those foreign-policy insecurities have no place in New York State‘s excellent Unified Court System. Our government
III.
Glomar aside, both the majority and the dissent come to what I view as unsound resolutions because they fail to consider two important propositions. First, the scope of a particular FOIL request affects the appropriateness of a response refusing to admit or deny the existence of documents. Second, an agency, in responding to a FOIL request, may not be able to make a single response that is appropriate for all the information sought by the request.
Consider two requests: (1) all documents the NYPD possesses concerning any investigation of me; (2) all documents the NYPD possesses concerning any female undercover officer present at the XYZ bar on the evening of February 27, 2018. FOIL requires a different agency response to these two requests, and the former requires far more proof than the latter to justify a refusal to admit or deny the existence of documents. In the case of the latter request, the request facially is to determine the identity of an undercover officer or the existence of an ongoing investigation, and no extrinsic proof should be required to justify the NYPD‘s refusal to admit or deny the existence of documents. The dissent‘s absolutist position would require the NYPD to respond that documents do (or do not), exist, which is neither required by FOIL nor responsible public policy.
Neither the majority nor the dissent acknowledges that, in the case of a broad request such as (1) above, the agency is not entitled to give a monolithic response, and cannot give any response without examining the documents in its possession, if any. That is, FOIL expressly states that agencies may grant or deny requests “in whole or in part,” and a broad request likely calls for a differentiated response, based on the agency‘s examination of what, if anything, it possesses.
Here, as the dissent notes, the requests seek information about current investigations as well as past investigations. Those two differ in the proof required. As to pending investigations, an agency‘s refusal to admit or deny the existence of responsive records should require little, if any, proof, because the acknowledgement of the existence of an investigation while it is pending (or being contemplated) is clearly likely to “interfere with law enforcement investigations.” However, absent some specific proof that would bring disclosure of the existence of a past investigation within a FOIL exception, documents related to closed matters do not presumptively interfere with law enforcement investigations. Although agnostic on the question, today‘s decision, if properly implemented, should allow the NYPD categorically to refuse to confirm or deny the existence of records only if those records “involve[ ] an ongoing criminal investigation” or were provided to it under an information-sharing agreement with federal agencies whose records are specifically exempted from disclosure (majority op at 237). I discuss the application to the facts of this matter in part V.
IV.
I agree with the majority that “our existing FOIL paradigm contains important safeguards against misuse of the exemptions that are no less available in the rare instance when a” Glomar-response is asserted (majority op at 238).
Chief among those safeguards is the parties‘, our lower courts‘, and the majority‘s recognition that an agency declining to confirm or deny the existence of responsive records must be held to the same standard expected of every agency that denies any part of a FOIL request.2 To withhold responsive records, or any information about those
Another familiar safeguard is the expectation, shared by the majority, that courts unable to determine whether withheld documents fall entirely within the scope of the asserted exemption will “test the legitimacy of a claim of confidentiality” by ordering an “in camera review of sensitive or confidential materials” (majority op at 237; see
A third and final familiar safeguard is the provision, recently augmented by the legislature, for attorney‘s fees to be awarded to petitioners who substantially prevail over an agency‘s effort to restrict the freedom of information (
In addition to those familiar safeguards, all parties in this case suggest—and the majority agrees—that further precautions should be adopted in FOIL cases where the agency neither confirms nor denies the existence of responsive records.
Second, as the NYPD proposes, a petitioner should have the opportunity to test the affidavit by (a) “argu[ing] that the agency‘s claims are insufficient to show that acknowledging the existence of records implicates an exemption to disclosure” and (b) “producing competent evidence” that rebuts the agency‘s proffered justification for using a circumscribed response (brief for respondents at 43-44). To “create as complete a public record as is possible,” the petitioner “should be allowed to seek appropriate discovery” (Phillippi, 546 F2d at 1013).
Third, a petitioner should have the opportunity to challenge the asserted FOIL exemption by advancing “a claim of bad
Fourth, a petitioner should have the opportunity to establish an exemption to the exemption by demonstrating that the agency “has already revealed the records sought and for which it claims an exemption” (majority op at 237). If so, that agency “cannot credibly support [a Glomar-type] response” and the court should “compel[ ] [the disclosure of information] over an agency‘s otherwise valid exemption claim” (id.; Fitzgibbon v Central Intelligence Agency, 911 F2d 755, 765 [DC Cir 1990]). Although the long-standing test for whether information has been officially acknowledged by an agency appears quite narrow (see id.), more recent decisions have compelled disclosure when an agency, or another high-ranking public official, has revealed not the document itself but the information that would otherwise justify withholding the document (New York Times Co. v United States Dept. of Justice, 756 F3d 100, 120-121 [2d Cir 2014]; American Civ. Liberties Union, 710 F3d 422, 428-432 [DC Cir 2013]). The world‘s few Glomar watchers would see the federal courts move still further in that direction (Michael D. Becker, Piercing Glomar: Using the Freedom of Information Act and the Official Acknowledgment Doctrine to Keep Government Secrecy in Check, 64 Admin L Rev 673, 698 [2012]; Wessler, 85 NYU L Rev at 1414).
Moreover, the federal official acknowledgement doctrine is instructive, but—even at its broadest—too narrow for FOIL. As with other concepts borrowed from Glomar cases, its birth “in the arena of intelligence and foreign relations” has stunted its growth (Fitzgibbon, 911 F2d at 765). In those arenas, “there can be a critical difference between official and unofficial disclosures” (id.; see Wilson v Central Intelligence Agency, 586 F3d 171, 186 [2d Cir 2009] [“(F)oreign governments can often ignore unofficial disclosures of CIA activities that might be viewed as embarrassing or harmful to their interests() . . . (t)hey cannot, however, so easily cast a blind eye on official disclosures made by the CIA itself“]; Afshar v Department of State, 702 F2d 1125, 1130-1131 [DC Cir 1983] [“Unofficial leaks
The NYPD, however, has no international diplomacy docket. Accordingly, the official acknowledgement doctrine should yield, here, to the broader public domain doctrine (see Chesapeake Bay Found., Inc. v United States Army Corps of Engrs., 722 F Supp 2d 66, 72 n 3 [D DC 2010] [refusing to apply the open acknowledgement doctrine in a case involving law enforcement records]). “Under the public domain doctrine, FOIA-exempt information may not be withheld if it was previously disclosed and preserved in a permanent public record. . . .The plaintiff bears the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld” (id. at 72 [internal quotation marks and brackets omitted]). If FOIL petitioners can establish that the existence of a document, or the information an agency seeks to protect by refusing to confirm the existence of a document, is already included in a public record, then agencies should have to disclose that information.
Together, these safeguards—as well as others that courts deem appropriate in discharging their obligations to adjudicate FOIL determinations challenged pursuant to article 78—suffice to protect petitioners from overzealous assertions of an agencies’ inability to confirm or deny the existence of records.4
Here, the NYPD moved to dismiss petitioners’ article 78 proceeding because it alleged confirming or denying the existence of any records responsive to their requests would cause harms cognizable under FOIL‘s law enforcement and public safety exemptions (
1. “The knowledge that a person or group is the subject of a NYPD counter-terrorism investigation would allow that person or group to alter their behavior so as to avoid detection”
2. “Conversely, the knowledge that a person or group is not a subject of investigation would allow such persons to more freely engage in illegal activity”
3. “[A] person who knows he or she is under investigation might scrutinize his or her contacts more carefully and, in doing so, could discern the identity of an undercover police officer or confidential informant working on the case. Not only would this compromise the integrity and value of any information to be learned from such sources, but it could endanger the lives and safety of such sources”
4. “Disclosure of whether a particular individual or group is the subject of investigation would allow those bent on unlawful activity to prepare a roadmap of investigatory operations, decisions, techniques and information that would enable every group to anticipate investigative tactics and activities, and undermine current and future investigations.”
In opposing the motion to dismiss, the petitioners argued that Chief Galati‘s affidavit failed to establish a prima facie case for asserting such a severely circumscribed response. They also argued that, even had the case been established, it would have been defeated by the fact that the information the NYPD sought to protect was already a matter of public record, by the stricter scrutiny turned on agencies that assert FOIL exemptions in bad faith, and by in camera review.
A. The NYPD‘s Prima Facie Case
As discussed in part III, in response to a FOIL request seeking information about investigations, I would hold that the NYPD has the right to refuse to confirm or deny the existence of documents as to any pending investigation, because such a request facially interferes with a law enforcement investigation.5 However, the requests here are not limited to present investigations, but include past ones as well. As to those, the NYPD has not carried its burden of articulating a particularized and specific justification for refusing to confirm or deny whether documents responsive to any of petitioners’ 22 requests exist.
Those three harms fail to justify the NYPD‘s refusal to confirm or deny the existence of past investigations.
Contrary to the majority‘s insistence that the requests were “extremely specific” and related to “a discrete time period immediately preceding the request,” many of them were unbounded in time and in type (majority op at 234, 238). Petitioners requested, for instance, “[a]ll records related to the surveillance of Imam Talib W. Abdur-Rashid by NYPD,” “[a]ll records related to the Mosque of Islamic Brotherhood . . . relied upon by the NYPDThe fourth harm alleged in Chief Galati‘s affidavit is more substantial. Acknowledging the existence of records responsive to requests of the kind submitted by these petitioners could, in the aggregate, provide terrorists and other criminals or criminal organizations with a guide to the people and places, or the type of people and places, monitored by the NYPD.
That rationale, however, is subject to the same time and type restrictions as its companions. As to time, there is some point, which the NYPD should have specified or Supreme Court should have determined, prior to which information about the NYPD‘s historical capabilities, strategies, and operating tactics will cease to provide today‘s threats with relevant information. A map of NYPD activities around Rutgers may continue to reveal important general practices, or may be considerably less germane to a world in which the NYPD has substantially curtailed or abandoned its out-of-state activities. Given the constant improvements to and alterations in NYPD capabilities and strategies, as well as the significant changes made to the Intelligence Division in the wake of the 2013 mayoral election that separated the initial request for records from the hearing on the motion to dismiss, Chief Galati‘s affidavit either failed to justify categorically refusing to acknowledge the existence of records pertaining to closed investigations or—equally fatally—must be taken to justify withholding such information permanently. As to type, whatever the counterintelligence capacities of gangsters and terrorists, garden-variety criminals
Put aside the deficiencies in Chief Galati‘s affidavit. Still, its purported justification goes to terrorism-related threats only, and the NYPD‘s FOIL response should at a minimum have read “We [have] [do not have] records of investigating or surveilling the petitioners on suspicions other than terrorism. As to whether terrorism-related records exist, we cannot say.” Accordingly, I would reverse the Appellate Division‘s order granting the motion to dismiss and remand the case to Supreme Court, where the NYPD can augment Chief Galati‘s affidavit and the parties can hash out, on a request-by-request basis, to what extent an entirely circumscribed response is appropriate as to past investigations.
B. The Petitioners’ Rebuttal Evidence
In addition to challenging the sufficiency of the NYPD‘s affidavit, petitioners invoked one other safeguard native to FOIL and two modeled on federal FOIA decisions.
In addition to requesting in camera review, petitioners alleged facts invoking two additional FOIL safeguards: the bad faith and official acknowledgment doctrines. The NYPD urges not only those safeguards’ adoption but also their zealous enforcement; “[F]ederal courts employing similar safeguards do not operate as a rubber stamp on agencies’ use of the circumscribed response . . . [P]rocedural safeguards are far from a paper tiger and allow for meaningful judicial review” (reply brief for respondents-appellants in Hashmi v New York City Police Dept., 140 AD3d 419 [1st Dept 2016], at 20, reprinted in record at 837). Because respondents are here on a motion to dismiss, it is our responsibility to accept all the facts claimed in the petitions as true, accord petitioners the benefit of every possible favorable inference, and determine only whether the facts as alleged make out any cognizable legal theory for defeating the protections of the FOIL exemptions (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Under that standard, even had Chief Galati‘s affidavit made out a prima facie case for nondisclosure, the motion to dismiss should have been denied and the cases remitted to Supreme Court.
Turning first to the bad faith doctrine, petitioners allege several grounds for their assertion that the NYPD is refusing to confirm or deny the existence of responsive records not because that would cause a harm cognizable under a FOIL exemption, but because it wishes to conceal evidence of underlying illegality: an investigation and surveillance program premised on religious discrimination. The majority dismisses that argument by complaining that “other than general allegations arising from news reports, petitioners offered no evidence that the NYPD‘s response to these particular requests is a function of bad faith” (majority op at 238). In so doing, it ignores the standard of review appropriate on a motion to dismiss. The AP‘s Pulitzer Prize-winning series of articles detailing the NYPD‘s questionable conduct and efforts to cover up that conduct satisfies the threshold showing required to allow petitioners to “seek appropriate discovery . . . to identify the procedures by which [the NYPD‘s] position was established” (Phillippi, 546 F2d at 1013). That showing is buttressed by the allegations that the NYPD, which took
Second, the petitioners alleged the NYPD has already officially acknowledged the information it hopes to conceal by refusing to confirm or deny the existence of responsive records. In a June 2012 deposition in a different case, Chief Galati acknowledged that “none of the visits conducted by the Zone Assessment Unit [ZAU] resulted in an investigation.” Although that statement is followed by some discussion of what constitutes an investigation and whether the ZAU was designed to pursue them, it seems in tension with the NYPD‘s claim that it had not already denied having, for example, “records related to any investigation of Talib W. Abdur-Rashid in relation to his activities as Imam of the Mosque of Islamic Brotherhood.” In addition, in Hashmi, it is ambiguous whether Supreme Court found nothing in “Mayor de Blasio‘s well-publicized decision to disband the NYPD unit that had conducted the surveillance” that undermined the agency‘s ability to deny the existence of records or erroneously concluded, as the prior sentence of its opinion suggests, that the mayor was not the kind of senior executive branch official whose statements are “sufficient to effect waiver of a Glomar response” (Hashmi, 46 Misc 3d at 723). It may be that “[w]hatever protection” the records “might once have had has been lost by virtue of public statements . . . at the highest levels” (New York Times Co. v United States Dept. of Justice, 756 F3d 100, 120-121 [2014]).
Even if those disclosures do not satisfy the official acknowledgment doctrine, they, coupled with the information in the AP articles and in the leaked NYPD documents that accompanied those articles, may defeat the NYPD‘s refusal to confirm or deny the existence of certain responsive documents. Rather than grapple with the full scope of the disclosures, the NYPD fixates on the fact that they emanate from the AP, rather than from its own officials. That fixation “confuses the act of waiver . . . with an agency‘s independent obligation to ‘carry its burden’ ” of showing the mere disclosure of a document‘s existence would be protected (Florez v Central Intelligence Agency, 829 F3d 178, 186 and n 8 [2d Cir 2016] [rejecting a “per se rule barring consideration of third party disclosures” and instead remanding “to allow the District Court to weigh the facts in the first instance” (emphasis omitted)]). A third party‘s disclosures “cannot waive the asserting agency‘s right to a Glomar
Several references in the existing record suggest that has happened in this case. To give but one example, the petitioners requested “[a]ll directives and/or memoranda sent or received by the NYPD related to surveillance of the Rutgers Muslim Student Associations from 2006-2012.” The AP published a copy of the NYPD‘s weekly Muslim student association report responsive to that request. It is untenable for the NYPD to neither confirm nor deny the existence of that responsive record. Once the existence of one record in a category must be disclosed, it may be that the existence of other records in the same category are not protected.
“The Glomar doctrine is in large measure a judicial construct, an interpretation of . . . exemptions that flows from their purpose rather than their express language. In this case, the [agency] asked the courts to stretch that doctrine too far—to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible. ‘There comes a point where . . . Court[s] should not be ignorant as judges of what [they] know as men’ and women” (American Civ. Liberties Union, 710 F3d at 431, quoting Watts v Indiana, 338 US 49, 52 [1949]).
The cases should be remitted to Supreme Court so the petitioners can augment the record with additional documents disclosed by the AP and so the court can consider the implications of the disclosure of those documents.
The majority‘s insistence on resolving these cases on the scant record before us privileges the expectation that FOIL suits will be resolved on the law over the reality that these FOIL suits turn, in part, on contested facts. It is at odds with our standard of review for motions to dismiss and inconsistent with the federal practice in Glomar cases of “first determin[ing] whether the district court had an adequate factual basis upon which to base its decision” (Minier, 88 F3d at 800). Whatever the majority‘s confidence in its conclusions, “[p]laintiffs are entitled to an opportunity to conduct their own litigation” (Phillippi, 546 F2d at 1015).
Even were the record not riddled with opportunities for further development, the appropriate remedy after resolving the
For that and the foregoing reasons, I would remit these cases to Supreme Court to provide both parties with a fair opportunity to litigate their cases on the terms described herein.
Stein, J. (dissenting). Whether, and to what extent, law enforcement agencies should be permitted, under the Freedom of Information Law (
It is beyond dispute that terrorism presents a significant threat that our law enforcement agencies must be equipped to combat. Undoubtedly, the concerns of respondent New York City Police Department (NYPD) and various amici warrant
I.
FOIL is founded upon the ” ‘premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government’ ” (Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 73 [2017], quoting Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). As explained in the FOIL “Legislative declaration,”
“a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.
“As state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible. “The people‘s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.
“The legislature therefore declares that government is the public‘s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article” (
Public Officers Law § 84 ).
Consistent with this legislative intent, we have recognized that “judicious use of the provisions of [FOIL] can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short, ‘to hold the governors accountable to the governed’ ” (Matter of Fink, 47 NY2d at 571, quoting NLRB v Robbins Tire & Rubber Co., 437 US 214, 242 [1978]).
To effectuate these goals, FOIL incorporates a presumption of access to records (see Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007]). More specifically,
To that end, “our primary consideration ‘is to ascertain and give effect to the intention of the Legislature’ ” as indicated through the statutory text (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006], quoting Riley v County of Broome, 95 NY2d 455, 463 [2000]). Further, we must “giv[e] effect to the plain meaning” of unambiguous language (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]), and “the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended” (McKinney‘s Cons Laws of NY, Book 1, Statutes § 74; see Matter of Corrigan v New York State Off. of Children & Family Servs., 28 NY3d 636, 642 [2017]; Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 61 [2013]).
As written, FOIL permits an agency to “deny access” to records or information where the requested “disclosure” meets certain criteria (
Pursuant to
We also have emphasized that FOIL “exemptions are to be narrowly interpreted so that the public is granted maximum access to the records of government” (Matter of Data Tree, LLC, 9 NY3d at 462; see Matter of Madeiros, 30 NY3d at 73). An agency “cannot merely rest on a speculative conclusion that disclosure might potentially cause harm” (Matter of Markowitz v Serio, 11 NY3d 43, 51 [2008]). Rather, “[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld” (Matter of Fink, 47 NY2d at 571).
The NYPD attempts to circumvent the plain language of FOIL and these principles governing the use of FOIL exemptions—and, ultimately to avoid their burden of proving the applicability of such an exemption—by arguing that a Glomar response must be permissible because, in some limited contexts, a FOIL request may be framed in such a way that disclosure of the existence of the record, alone, causes the same harm as disclosure of the actual record sought. To be sure, ” ‘the purpose of [FOIL] is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that
The flaw in the NYPD‘s position is that, in order for a Glomar response to be effective, it must be utilized whether or not the requested record exists and whether or not a FOIL exemption actually applies. In other words, to permit the Glomar response is to authorize the agency—here, the NYPD—to give the same response to individuals requesting information pertaining to its investigations regardless of whether the subject of the requested information is actively being investigated, was never investigated, or was investigated and cleared of any wrongdoing in the past. After all, the Glomar response would be the equivalent of an implicit concession that responsive records exist if invoked only when there is an ongoing investigation.
To illustrate how the Glomar response can protect information otherwise disclosable under FOIL, we need only point out that the Glomar response will inevitably cloak in secrecy records pertaining to closed investigations. Without additional factual explanation, the NYPD would lack a valid claim that revealing the nonexistence of records would cause any harm qualifying for FOIL exemption, such as interference with a law enforcement investigation, identification of a confidential source, or endangerment of life and safety (see Matter of Lesher v Hynes, 19 NY3d 57, 68 [2012]). In such instances, it is likely that a FOIL exemption would not apply and, typically, “[i]f the [agency] fails to prove that a statutory exemption applies, FOIL ‘compels disclosure, not concealment’ ” (Matter of Data Tree, LLC, 9 NY3d at 463, quoting Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 580 [1980]). The Glomar doctrine, however, permits concealment.
To adopt the Glomar doctrine is, therefore, to endorse an impermissible blanket exemption that is not set forth in the statute and which applies without regard to whether the harm protected by the relevant FOIL exemption is actually implicated or whether it is merely speculative. Contrary to the majority‘s
In view of our recognition that “the Legislature established a general policy of disclosure by enacting the Freedom of Information Law” (Matter of Fink, 47 NY2d at 571), this Court recently held that “we cannot undermine that policy by exempting a large category of information from FOIL in a manner inconsistent with the plain language of the statute” (Matter of Friedman, 30 NY3d at 478). Yet, the majority does just that by giving a law enforcement agency carte blanche to exempt, with precious little (if any) judicial oversight, a broad swathe of governmental records, without regard to whether the records requested—assuming they do exist—actually fall within the plain language of the exemption on which the Glomar response is purportedly based or whether the agency has made any factual showing to that effect.
Here, no “particularized and specific justification” was offered for the exemptions claimed (Matter of Fink, 47 NY2d at 571), as reflected by the fact that the NYPD submitted identical
II.
To support its position before us, the NYPD relies heavily on federal case law interpreting the Freedom of Information Act (
The Glomar doctrine originated in 1976 when the Central Intelligence Agency (CIA) responded to a request for information regarding the Hughes Glomar Explorer—an oceanic research vessel that was allegedly owned by the United States government and used to retrieve a sunken Soviet Union submarine during the Cold War—by refusing to either confirm or deny the existence of relevant records (see Phillippi, 546 F2d at 1012). The CIA asserted that the existence or nonexistence of the requested records was, itself, a classified fact since admitting their existence would implicitly reveal that the CIA had some affiliation with the Explorer. Accordingly, the CIA argued that the existence or nonexistence of records was exempt from disclosure pursuant to FOIA Exemptions (1) and (3), which exempt “classified” information (see
At its inception, the Glomar doctrine was not expressly authorized by the FOIA statute (see e.g. Shapiro v United States Dept. of Justice, 153 F Supp 3d 253, 275 [D DC 2016] [recognizing that the Glomar doctrine is a judicial “gloss” on FOIA‘s text]; American Civ. Liberties Union v Central Intelligence Agency, 710 F3d 422, 431 [DC Cir 2013] [“The Glomar doctrine is in large measure a judicial construct“]). Nevertheless, federal
In those federal courts in which the Glomar doctrine has gained acceptance, it has been invoked almost exclusively in connection with FOIA Exemptions (1) and (3) (see
Cases applying the Glomar doctrine to the law enforcement exemptions in FOIA—the federal analogues to the exemptions on which the NYPD principally rely here—are scarce.6 This is likely because, 10 years after the judicial formulation of the Glomar doctrine, Congress enacted
Although years have passed since the proliferation of the Glomar doctrine under federal case law, and decades have gone by since congressional enactment of section 552 (c) to define the narrow circumstances in which the Glomar doctrine should be applied to law enforcement investigations, our state legislature has not authorized the Glomar response. This is so despite numerous other amendments to FOIL. Abiding by the principle that “courts are not to legislate under the guise of interpretation” or by reading into a statute an exception that does not exist, it is not our place to do so now (People v Finnegan, 85 NY2d 53, 58 [1995], cert denied 516 US 919 [1995]).
III.
The majority repeatedly asserts that permissible use of the Glomar doctrine will be “rare” and “unusual” (majority op at 233). However, application of the doctrine under the circumstances presented here—despite the absence of in camera review to determine whether any of the exemptions set forth in FOIL actually apply and by defining the relevant investigation at the macro level of “terrorism“—casts doubt on whether that will, or indeed can ever be, the reality. While complete rejection
In my view, the analyses of the majority and the partial dissent tread too closely to a weighing of policy arguments relating to the wisdom of the respective parties’ perspectives with regard to society‘s interests in government transparency during dangerous times. These difficult choices are for the legislature, not for this Court to make under the guise of statutory interpretation. Ultimately, our task is to read and give effect to the statute “as it is written by the [l]egislature, not as the court may think it should or would have been written if the [l]egislature had envisaged all the problems and complications which might arise” (People v Tychanski, 78 NY2d 909, 911 [1991] [internal quotation marks and citations omitted]).
Accordingly, I dissent.
Judges Fahey, Garcia and Feinman concur; Judge Wilson dissents in part in an opinion; Judge Stein dissents in an opinion in which Judge Rivera concurs.
Order affirmed, with costs.
Notes
Further, the majority completely fails to address the implications of Glomar responses in cases where records exist that are not protected by a statutory exemption but which, nevertheless, will be shielded from disclosure and judicial review by such a response. Instead, the majority avoids this problematic aspect of its position by suggesting that petitioners limited the dispute to records concerning terrorism-related investigations. This is inaccurate. Petitioners’ FOIL requests are devoid of any reference to terrorism investigations or to news articles relating to the NYPD‘s covert domestic counterterrorism operations. Petitioners requested, among other things, “[a]ll records related to any investigation of [petitioners] between 2006-2012,” “[a]ll records related to [the petitioners] relied upon by the NYPD that led to any report being filed,” and “[a]ll records related to the surveillance of [the petitioners] by [the] NYPD” (emphasis added). Indeed, the majority‘s apparent claim that the Glomar response was given only because the investigations at issue related to terrorism is untenable considering that the NYPD denied petitioners’ administrative appeals, in part, on the ground that petitioners failed to specifically identify the nature of the investigations to which the FOIL requests pertained. Moreover, while it is true that petitioners referenced a series of news articles concerning NYPD surveillance of Muslim communities in their CPLR article 78 petitions—filed after the Glomar responses had been conveyed—at no point did they disavow or narrow their earlier requests for records pertaining to “any investigation.” In addition, they maintained that the NYPD‘s response was an impermissible blanket exemption and that the NYPD should instead redact any records containing protected information. Despite the majority‘s repeated attempts to shift the blame to petitioners for the agency‘s noncompliant response here, it is unquestionably the NYPD‘s burden to demonstrate the applicability of an exemption to any records withheld—a showing that is woefully lacking.