New York City Court Buys NYPD's Claims Of 'National Security,' Grants It Power To 'Glomar' FOIL Requests

from the don't-have-to-confirm-or-deny-jackshit,-citizen dept

A New York City court has given the NYPD one of the few things separating it from the "big boys" (CIA, FBI and NSA): the permission to issue "Glomar responses" (the infamous "we can neither confirm nor deny...") to FOIL (Freedom of Information Law) requests. Like the audacity of the department itself in pursuing this additional method of keeping the public separated from public documents, the decision is unprecedented.

The decision appears to be the first time that a court anywhere in the U.S. has upheld the use of such a tactic by a state agency. The Glomar response has historically been used only with regard to requests made to federal agencies that involve sensitive matters of national security.
That a New York court would find in the home team's favor is perhaps inevitable. The NYPD, along with various officials, have long portrayed the safety of New York City as inextricably intertwined with the safety of the nation itself -- a view partially justified by the city's position as the epicenter of the 9/11 attacks.

But doing so allows a department with a proven track record of open hostility towards FOIL requests another way to abuse its position. On top of heavy redactions, an in-house classification system that has no apparent legal basis, and plain old stonewalling, the NYPD will now be able to simply claim it can't even acknowledge the existence of responsive documents. This shifts the balance too far in its favor.
At the federal level, use of Glomar responses is premised on the argument that there are certain matters of national security that would result in irrevocably harm if divulged to the general public. It has been criticized by open government groups, including the Reporters Committee, because it allows agencies to deny FOIA requests without giving detailed reasons that the requesters can argue against. Once an agency invokes the Glomar doctrine, courts generally afford it great weight and rarely inquire further.
And that's at the federal level, where claims of national security should carry with them a bit more credulousness. The actual "Glomar" in the original "Glomar response" referred to the CIA salvage vessel being used to find a sunken Soviet submarine. These days, it's used to tell FOIA requesters that the NSA can neither confirm nor deny it uses terms like "collect it all," or has compiled any data at all on the requester him/herself.

The NYPD has now been granted a federal power, without having to show its national security claims are valid. If the requested documents do indeed contain information possibly damaging to national security, why isn't there a federal agency involved? It's well known that the NYPD prefers to run a highly autonomous agency -- one that inserts itself into terrorist investigations overseas but openly rebuffs FBI assistance in its own town. But if you're going to claim you may or may not be in possession of investigatory documents with national security ramifications, then you should also be asked to explain why the FBI, DHS or other national agency isn't included on the CC line, and why this federal agency isn't the one kicking out the Glomar response.

Considering the documents currently being Glomared ("...a request by Imam Talib Abdur-Rashid for records regarding NYPD surveillance of himself and his mosque…") are related to the counter-terrorist investigations of the recently shuttered "Demographics Unit," there's a good chance no federal agency would touch them with a 10-foot redaction. The division seemed to pride itself on willful violations of civil liberties, but this methodology turned the (often minimal) fruits of its investigations too toxic for even the CIA to partake in.

So, the NYPD may actually be sitting on something that implicates national security, but it's finding no federal takers thanks to its inability to respect the Constitution or to work well with others. That's a problem. But it's not nearly as much of a problem as being granted a new power to abuse in its quest for law enforcement opacity.


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  • identicon
    Baron von Robber, 21 Oct 2014 @ 12:54pm

    New York Uber Alles

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 1:09pm

    New York seems to think it is its own country. Im afraid the war is coming. I've seen too many borderline violent posts on mainstream sites from people getting tired of this garbage who make it clear who they think are the real enemy of the citizens.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 1:18pm

    Can we get a member of the ACLU permanently installed within the NYPD? PLEEEASE

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 1:28pm

    'Tyranny and corporatism for all'

    more than 10 years later the US is still cowering in fear. Stripping itself of liberty and freedom. The US politicians are playing you guys like a fiddle. That's not the country i'll remember.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 1:45pm

    hopefully, the ruling will be appealed and a judge with some actual sense will try the new case!

    reply to this | link to this | view in chronology ]

  • icon
    Lord_Unseen (profile), 21 Oct 2014 @ 1:51pm

    You know you've lost it when the CIA thinks you've gone over(water)board.

    I'll see myself out now.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 2:02pm

    This is why Deputy Matt's claim that every one is to blame for the lack of trust in police departments across the nation is such a hard sell to the public.

    When the police do everything they can to prevent public accountability, when there are deaths near every day from police encounters across the nation, where video evidence as well as eye witness accounts means nothing in court, and those accused police walk of scott free; there is a reason for that mistrust.

    Actions like this are not likely to improve that mistrust either.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 2:02pm

    one rule for us, another rule for them

    "-- a view partially justified by the city's position as the epicenter of the 9/11 attacks."

    Pardon the correction, Tim, but Al Qaeda's operational mission was equally split between Washington, D.C. and New York City. Despite this, the press virtually ignored Washington while going bonkers over NYC.

    Overseas, however the US press does the exact opposite. US military attacks on civilians are largely ignored, regardless of the number of casualties, while attacks on government officials and military leaders get all the coverage.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Oct 2014 @ 11:11pm

      Re: one rule for us, another rule for them

      Despite this, the press virtually ignored Washington while going bonkers over NYC.
      Which might actually explain why the federal government has been so helpful in militarizing the police. The people in DC realized how little concern "the people" have for their well-being.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 2:09pm

    They may have a classification system in-house and the judge at a local level sided with them but if it is not backed up by one of the federal government branches then I don't see why it also can't just be ignored by anyone else.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2014 @ 3:45pm

    High hopes for an appeal being filed, this is getting ridiculous, It may be time to remove the currant police force altogether along with a few key politicians.

    reply to this | link to this | view in chronology ]

  • icon
    beltorak (profile), 21 Oct 2014 @ 3:52pm

    > then you should also be asked to explain why the FBI, DHS or other national agency isn't included on the CC line....

    Why, dear Patriot, it's due to ~~parallel~~construction~~ *cough *cough, 'scuze me, "things that we can neither confirm nor deny". National Security, you understand.

    What's that?

    Listen, Patriot, your... curiously obsessive interest in this matter could be viewed by some as a desire to try and force the disclosure of highly sensitive operational intelligence to our enemies. Might even be construed as actively aiding enemies of the state. You wouldn't want to be seen as someone who is aligned with terrorist interests, would you?

    I thought not, Patriot. Run along now.

    reply to this | link to this | view in chronology ]


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