FOILed Again: Freedom of Information Laws Are Just That — Laws. So Why Does the NYPD Get to Keep Breaking Them?
Samir Hashmi is a graduate student suing the NYPD over investigative files he believes the department compiled after 9-11.
Samir Hashmi and his friends at Rutgers University used to joke about government surveillance. As a prominent member of a Muslim student group during his years on campus, between 2006 and 2011, Hashmi spent much of his free time doing outreach at the school, trying to demystify Islam and help the wider community understand his beliefs. He was a public figure around the university. Soft-spoken and round-faced with an easy grin, a firebrand Hashmi is not.
Today he's a graduate student studying business information systems and still looks significantly younger than his 27 years. Sitting next to him in their attorney's Manhattan office is Talib Abdur-Rashid, the imam of a Harlem mosque and a prominent member of New York's Muslim community. He is 65, with a silvering beard, dressed in a robe and skullcap.
The two men have little in common aside from their faith. If not for a series of articles published by the Associated Press in 2011, they likely never would have met. But that Pulitzer Prize–winning investigation, which exposed a program of illegal, dragnet surveillance of Muslim communities by the NYPD, eventually drew both into an unusual legal battle that's now playing out in court. They're suing for access to investigative files they believe the department compiled on them as a part of that illegal program. As the AP detailed, student groups like Hashmi's and mosques like the one Abdur-Rashid leads were prime targets.
The case, Hashmi v. NYPD, is being watched closely by civil rights and open-government advocates, not to mention journalists, because it has the potential to upend New York's Freedom of Information Law (FOIL). (It also happens to have landed back in court just in time; this week is Sunshine Week, a national celebration of open government.)
Faced with Hashmi and Abdur-Rashid's demand to see documentation, the NYPD is asking the courts for unprecedented control over information, including the right to keep investigative files — the kind generated when the police carry out surveillance — secret in perpetuity, even from the courts. That privilege has historically been reserved for federal agencies like the CIA and the FBI, and only for records so sensitive they could endanger national security.
The legal posture the department has adopted, asserting its right to issue what's known as a Glomar response, would be novel in state courts, but is now routine at the federal level. If you've ever heard the phrase "we can neither confirm nor deny," probably uttered by some mewling government agent in a John Grisham novel, you're familiar with the concept.
If the NYPD successfully imports the Glomar response from federal law, it would be a significant departure from the way FOIL operates in New York State. It's also completely unnecessary. As the law stands, the government can already refuse to turn over records for a wide variety of reasons. All officials have to do is explain why they're withholding the records at issue, acknowledging their existence in the process. What the NYPD wants is an official smokescreen; the ability, essentially, to stonewall the public, and maintain plausible deniability while doing so. No other state judiciary has granted such extraordinary powers to its law enforcement agencies, but no one should be surprised that the NYPD is swinging for the fences. Glomar, and the arguments that go with it, are the purest distillation of the department's longstanding attitude toward open government: naked contempt.
Talk to open-government advocates or journalists or lawyers, virtually anyone who's ever filed a FOIL request with the NYPD, and you'll hear the same stories. Delays that stretch for months, if not forever. Exorbitant fees, like the $36,000 the department is demanding from NY1 in exchange for some video footage. Just getting through to the NYPD can be an impossible task. Try calling certain records officers and you'll get a voicemail too full to accept more messages. Try emailing a request and you'll be told that's not allowed, even though the courts have ruled — unequivocally — that it is. Requests for even innocuous information are met with reflexive secrecy. Robert Freeman, director of the state's Commission on Open Government, remembers fielding a call from a guy who wanted to know the length of the Queens Midtown Tunnel. He FOILed the NYPD, and was told the information was too sensitive to release. (It's listed on Wikipedia as 6,414 feet, if you were wondering.) When the New York World and MuckRock designed a test of FOIL responsiveness last year, sending identical requests for a list of employees to various state and local agencies, the NYPD took three months to reply that it had no such list.
In October, the Voice filed what should have been an easy request. We asked for every FOIL letter the department had received, and every response it had sent out, for a two-month period. It's the sort of request that's routinely fulfilled elsewhere; at the federal level, this kind of information is periodically released by official ombudsmen as a matter of course.
What did we get from our request? Fifty-six pages of nothing. A series of meaningless index numbers stripped even of the names of requesters, with no explanation for the effective denial. It would have been easier to write FUCK YOU on our letter and send it back by return mail.
It's impossible to assess the scope of the NYPD's FOIL dysfunction — that would require the department to comply with FOIL — but it's a real and apparently worsening problem. "The department, when it comes to the timing and scope of its FOIL responses, is awful. Infamously awful," says Gideon Oliver, a civil rights attorney who's tangled with the NYPD over FOIL for years, especially on cases involving political activists. "There are so many systemic problems that many people I talk to just don't even bother trying to FOIL the police department anymore."
"It has more than a chilling effect," agrees Norman Siegel, another civil rights attorney, of the NYPD's brazen stonewalling. "It has a frozen effect." And he doesn't think it's an accident. "I think its part of a deliberate strategy. Nobody likes someone second-guessing them."
Even longstanding civil rights organizations face the same problems from the department. Chris Dunn of the New York Civil Liberties Union says his organization is routinely forced to sue for NYPD records. "I can't think of any agency that we have more trouble with than the NYPD," he says. "It's the culture of the NYPD, and that culture is completely contrary to the spirit of FOIL."
FOIL and the laws like it passed in every state, mostly in the reform-minded 1970s, weren't designed just for crybaby journalists, but for every citizen. They're the laws that allow you — in theory at least — to pry open the black box of government. They are the laws that keep you informed about what your government does in your name. And it's impossible to overstate their importance; FOIL laws have helped to expose corrupt policing, inadequate government oversight, deadly boondoggles, and graft of all kinds.
The effect of this kind of obstruction isn't just a problem for government watchdogs or lawyers or the press. If well-funded, savvy requesters can't make the law work, what chance do average citizens have, people without the time or wherewithal to badger public officials into complying with the law?
Talib Abdur-Rashid, imam of Harlem’s Mosque of Islamic Brotherhood
When Bill de Blasio served as Public Advocate, he took up the mantle of open government, going so far as to release a "report card" on local agencies' compliance with FOIL. Back then, the NYPD earned an "F." But now that he's in charge of that agency, where's the improvement? As Siegel points out, the department seems to have found new ways to drag its feet, sending out delay letters that appear to have no basis in law. (The Voice has received several of these in recent months.)
If anything, de Blasio seems to have made his administration more opaque. News reports a few months ago detailed a policy requiring certain FOIL responses from city agencies to be channeled through the mayor's office, a scheme that at best delays disclosure, and at worst raises the possibility that documents are being sanitized or withheld for political reasons.
Now, as the Hashmi case wends its way through the courts, City Hall seems intent on making the police department even more immune to public scrutiny.
The demand for an officially sanctioned veil of secrecy — the Glomar response — is radical on its face. But it starts to look even more radical in light of the moderate position staked out by the plaintiffs in the Hashmi case. During oral arguments last week, Omar Mohammedi, the attorney for Hashmi and Abdur-Rashid, explained that he's not expecting the department to turn over the documents at issue; he's not asking them to divulge any secret techniques, or expose any informants. All he wants, he told the court, is for the NYPD to do what it's always done: say no, and explain why it's refusing to release the information.
"[That] would be enough for us, your honor. They just need to say the document exists, but because of security reasons — whatever they're claiming — they can't release it," he said.
"It's clear what they want to do," Mohammedi continued. "They want to change this open policy in FOIL."
Since FOIL's inception, in 1974, agencies like the NYPD have been free to deny requests in a wide range of circumstances. The law contains a "presumption of openness" — all government records are considered public unless there's a specific reason they shouldn't be — but there are more than a dozen exceptions enumerated in the statute. One involves records related to investigations, which could have been applied to the materials Hashmi and Abdur-Rashid want. There are others that allow the police to withhold records that might jeopardize confidential sources, or non-routine techniques.
The NYPD, in other words, has always enjoyed a variety of ways to say "go fuck yourself," and the department has used them with zeal, even glee. And it could have in this case, too, Mohammedi points out, while relying on well-established law. But the NYPD wants more. Not only would the Glomar argument, if successful, conceal these records from requesters, but even the court would be unable to see them.
In a typical FOIL lawsuit, known as an article 78, a judge can examine the records at issue in camera, meaning out of view of the plaintiffs. That process is a failsafe to prevent agencies from simply lying about what they have on hand. But under Glomar, even that wouldn't be allowed; if the NYPD declares that some records are sensitive, the courts would have to take the department's word for it.
That assertion seemed to trouble Associate Justice Rosalyn Richter, as the two parties argued their case in the appellate division of New York Supreme Court last week. In a packed courthouse under a baroque paneled ceiling, she pressed NYPD attorney Devin Slack on the point. "Are you asking us to just say, because the city says so, it must be so?" Richter asked. No, he replied, the city would offer up an affidavit, and make an argument for why such records, if they existed, couldn't be disclosed.
The city has already offered up such an affidavit in the lower courts, but it isn't much more than a lengthy non sequitur, loaded with ominous references to purported al Qaeda investigations going back nearly fifteen years. Why should these records be withheld, the department asks? Terrorism. (The department also fails to mention that it's muddled through all of these investigations so far without resorting to the extremes represented by Glomar.)
"It's hate-mongering," Mohammedi says of the affidavit, and the specter of terrorism. "It's fear-mongering."
Mohammedi thinks it's obvious why the NYPD has been willing to push so far on this new legal strategy: embarrassment.
It all goes back to those AP reports. Even today, the department maintains that its surveillance program exposed in 2011 was legal and nondiscriminatory. But if the NYPD actually confirms, on the record, that it has investigative files on a college kid and a prominent imam, all its denials would be suspect. It would confirm, at least in an oblique way, that the program it ran was exactly what it looked like: blanket surveillance of an entire community. Pursuing the Glomar response helps preserve an official fiction, Mohammedi says.
Neither the NYPD nor the mayor's office responded to requests for comment on this story. But it's safe to say that both would dispute the idea that they're obstructionists and would point out some mitigating factors. So, while they can't be bothered to make the case themselves, we'll do it for them.
Their response would probably go something like this: The department receives an astronomical number of FOIL requests. Some are unreasonably broad, duplicative, or nonsensical. And as the public becomes more aware of FOIL's nominal power, requests are undoubtedly on the rise, straining resources. After all, some of those requests might require the attention of human eyeballs, and the humans attached to those eyeballs must be paid.
Other requests might be for information that can't be disclosed, because it truly would jeopardize investigations; some things, especially in a law enforcement context, must be confidential. Even a commie rag like the Voice can understand that, and no one wants a police informant getting shot because some resourceful rival FOILed his name and address.
All of the above are understandable, even reasonable points. But the NYPD's 2015 budget was $4.8 billion. The idea that FOIL is too burdensome might have been a reasonable excuse for one budget cycle. But that grace period expired around 1975.
If responding to FOIL requests has become an unmanageable burden on the staff assigned to handle them, the solution is obvious. As Oliver, the civil rights attorney, puts it, "Staff up." A court opinion from 1979 stated the principle eloquently: Complying with FOIL "is fulfillment of a governmental obligation, not the gift of, or waste of, public funds."
The NYPD isn't doing anyone a favor when it deigns to comply with the law, and its moaning about resources wouldn't be tolerated in any other context. If the mayor permitted sexual harassment in his offices because eliminating it would be too much work, he'd be tossed out of office, and rightly so. FOIL isn't a second-rate law, or a law with an asterisk: It's the law. Simple as that.
The department's protestations also ignore the fact that federal agencies like the FBI, or even local ones like the Los Angeles Police Department, are able to handle FOIL requests with infinitely more professionalism than Commissioner Bill Bratton's NYPD. No government agency is perfect, but many perform far better than our city's police department. It's the height of arrogance to suggest that the NYPD is somehow special.
But, for the time being, we're at a stalemate. When the department forces people into court to obtain public records, a lot of requesters — even well-resourced law firms and media organizations — give up. Filing suit is expensive and time-consuming. And the achingly slow process of litigation means the information ultimately wrested from the NYPD's grasp is often past its expiration date.
But there's a golden kernel of hope lodged in this steaming pile of obstruction. An amendment to FOIL in 2006 guarantees attorney's fees when the government loses a case. That means FOIL suits, when they're the right suits, are theoretically risk-free.
So maybe the solution has been staring us in the face all along. If the NYPD wants to go to war on FOIL — if they want to go to war on us — why not make it a war of attrition? Gather an army of like-minded attorneys, suit up, and sue. The police may not understand the language of the courts or the law or the will of the people; that's amply clear by now. But as we're reminded every year around budget time, they most certainly understand money.
See below for the 56 pages of nothing the NYPD gave us when we asked for copies of FOIL requests they received, and the replies they sent out, during a two month period.
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