NY Appeals Court Gives NYPD Even More Opacity By Upholding Its 'Glomar' Powers

from the sure,-there's-nothing-in-the-law-that-supports-this,-but-whatever dept

Three years after a lower court decided the NYPD could deliver Glomar responses to records requesters, the state’s appeals court has handed down its agreement. Apparently the NYPD can — without being a federal agency or one charged with pursuing terrorists in foreign countries — refuse to confirm or deny the existence of documents, something previously only granted to federal agencies.

The case stems from federal intervention, however. The records sought pertain to the NYPD’s now-disbanded Demographics Unit. As its name suggests, the Demographics Unit focused on one demographic: New York City Muslims. They were being placed under surveillance while they engaged in First Amendment-protected activities. This unit was created by a former CIA officer and routinely shared information with federal agencies like the FBI… right up until federal agencies realized the NYPD’s routine rights violations made the shared info too toxic to touch, must less to use in prosecutions.

C.J. Ciarmella sums up the majority’s opinion for Reason.

In a lawsuit brought by two Muslim men seeking NYPD surveillance records on themselves under New York’s Freedom of Information Law (FOIL), the state Court of Appeals said the department can invoke the so-called “Glomar response” made famous by the CIA—that is, it can refuse to say whether or not the records exist. Chief Judge Janet DiFiore, in a majority opinion joined by three of her colleagues, accepted the NYPD’s argument that disclosing whether or not such records exist would compromise its counterterrorism operations. FOIL, DiFiore writes, “was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature.”

This is a dangerous decision [PDF], one that will make an agency already belligerently indifferent to its obligations to the public even more secretive. The NYPD is not a national security agency, so its reliance on a national security-related response granted solely to federal agencies is misplaced. Or it was misplaced. Now it’s perfectly fine for the NYPD to act like its the CIA or NSA, despite the fact its investigations and prosecutions are all routed through normal courts, rather than the FISA variety. The dissent (there are two dissenting opinions] points out that denying the NYPD the Glomar response does not mean it has to reveal sensitive information to requesters. But the NYPD has little to offer in support of its supposed “need” for a national security exemption previously utilized only by federal agencies.

The majority’s reliance on 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 established by an Executive order to be kept secret in the interest of national defense or foreign policy,” which has no analog in FOIL. The Constitution arrogates national defense and foreign policy to the federal government; the NYPD is not searching for a lost Soviet submarine or worried about the foreign policy consequences thereof. Both the majority and dissent tar their FOIL analysis by referring to the NYPD’s response as a “Glomar” response.


Those foreign-policy insecurities have no place in New York State’s excellent unified court system. Our government features neither a unitary executive tasked with the national defense nor an elaborate system of classified information to which courts routinely defer. Most CIA endeavors will never see the light of day, let alone that of a courthouse; the destiny of every successful NYPD investigation is to appear before a judge.

The dissent also calls out the majority for its extreme deference to the NYPD’s national security hand-waving. There’s nothing the NYPD does that is so far beyond the comprehension of the court that it is not qualified to even discuss the underlying issues in FOIL lawsuits.

Regardless of federal courts’ competence to evaluate foreign countries’ changing political climates, we are not similarly handicapped in judging the soundness of FOIL exemptions based on police, privacy, or other justifications. Our courts are fully capable of scrutinizing an agency’s “response on a case-by-case basis to ensure it is warranted under the particular circumstances presented” (majority op. at 16).

As it stands now, the NYPD has been given a gift of federal-level secrecy — one with zero state-level statutory basis. The NYPD can, in essence, do more than the state’s public records law permits. Its national security claims will rarely be challenged successfully because FOIL requesters (who often become FOIL lawsuit plaintiffs) will be hard-pressed to assert standing when they can even prove the requested documents exist.

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Comments on “NY Appeals Court Gives NYPD Even More Opacity By Upholding Its 'Glomar' Powers”

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That Anonymous Coward (profile) says:

Ignorance is Strength!

Fscking lapdogs.

They targeted a single demographic based on a racist belief that brown = bad. They violated citizens rights. But oh it has to be super duper secret!

I would like people to use the Demo program on the Judges.
This bullshit it never happened to me so its not that bad & butbutbut terrorists have pushed us to a point where we need to demand Judges come out of their tiny little bubble.

Had the demo program gone after blacks, would the judges have upheld it?? Secret files & investigations, rights violations… once upon a time that would result in Federal Oversight… but b/c the targets are brown I guess its aokay.

Uriel-238 (profile) says:

The state continues to withhold oversight powers from the public

And in so doing affirms that the United States is not governed by the people or for the people, rather by and for the institutions that retain power and secrecy.

The next time someone argues that the US stands for freedom, or liberty, we can (and should) point to this as a counter example. We are peons under aristocratic rule.

Wendy Cockcroft (user link) says:

Re: The state continues to withhold oversight powers from the public

How much of that is down to people being less politically engaged because they’re encouraged to fear and distrust the government on principle?

If we did more to hold our representatives accountable I daresay we’d see some improvement in the conduct of our law enforcement agencies, etc.

Uriel-238 (profile) says:

Re: Re: The state continues to withhold oversight powers from the public

I’d argue that our overworked, underpaid workforce has neither time nor energy to engage in even local civics, and that’s a greater cause for public disengagement.

But Florida’s sunshine laws have demonstrated for us that when we do force state data to become pubic, someone will rummage through it for dirt, even if it’s more for humor value than actual oversight interests. The oversight may just be a happy side effect.

What is alarming is that data is successfully getting suppressed from public release, whether via FOIA obstruction or overclassification. It indicates that our state agents know that these vectors for public scrutiny work to reveal even casual wrongdoing, hence they take measures to suppress them.

If we recognized, as a cultural value that the suppression of information itself was an indicator of wrongdoing (perhaps to become a cause for Streisand-effect public interest) then this might change. Certainly after some major revelations in the US such as torture and mass surveillance we have cause to presume the worst of our agencies. But I think people are happy to not know what terrible things are done in the name of state interest.

Anonymous Coward says:

“Since 2014, the NYPD has unlawfully invoked the Glomar response to Freedom of Information Law (“FOIL”) request. The NYPD is not the CIA, FBI or NSA, or any other equivalent federal agency empowered/authorized to assert the Glomar response. “

So, I guess that ruins my idea of using the Glomar response, why does the FCC get away with it?

That One Guy (profile) says:

Deny one thing, admit to another

FOIL, DiFiore writes, "was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature."

This being ‘investigatory information’ relating to a program that was supposed to be shut down, the idea that handing it over would in any way inhibit or pose a problem to a current investigation is laughable.

For the majority’s ruling to make sense they would have to be operating under the assumption that the demographics unit was not only still in operation, but that it had any bearing on counter-terrorism beyond ‘muslim = terrorist’.

If the judges involved in the majority opinion are this willing to bend over backwards for the NYPD then they might as well take an extended break next time the agency comes to court and just let one of the NYPD’s lawyers write the ruling. Same result, lot less effort on their part.

(And of course as with all glomar responses the assumption should be made that it is a flat out admission that yes the information/documentation exists, and it is vastly worse than the one requesting it might suspect.)

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