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The NYPD has been going to the legal mat recently to protect records that might shed light on a now-infamous spy program targeting Muslims in the New York City area.
In a bid to prevent the release of documents possibly related to the program, the NYPD broke out the big guns, adopting a controversial legal strategy — called a “Glomar response” — pioneered by the CIA in the 1970s.
If you’ve ever read a Tom Clancy novel or watched (sigh) HBO’s The Newsroom, you’ve heard someone — usually a sinister federal agent of some stripe — say that they can “neither confirm nor deny” whatever horrible thing they’re being accused of doing.
The phrase has entered the popular lexicon in all kinds of contexts, but it actually grew out of a specific federal lawsuit.
When a reporter sought documents related to a secret CIA operation in 1975, the feds worried that turning them over would reveal important security information. More than that, the CIA believed that if they explained why they were legally allowed to withhold the records, they would inadvertently reveal that the records — and therefore the double-secret program itself — actually existed. (Spoiler: It did.)
Prior to that time, in order to deny a request made under the Freedom of Information Act, the government at least had to cite a specific “exemption” to explain the refusal. The Glomar response was therefore a novel approach. But the court bought it, and since then it’s become a routine if not particularly common tool at the federal level.
(The rest of the back story is pretty fascinating too. This Radiolab segment will fill you in on the saga of a sunken Russian submarine, a company called Global Marine — whence “Glomar” was born — and a whole lot of Cold War shenanigans.)
That whole thing went down in the federal courts, and has never really been accepted at the state level before the NYPD successfully tried it in October. (We wrote about that case, which is being appealed, back when it happened.)
The suit we’re concerned with today, which is similar to the October case, was brought on behalf of Samir Hashmi, a student at Rutgers University, who believes he and the Muslim student group he belonged to were targeted for NYPD surveillance a few years back.
It’s not exactly a wild claim. The Associated Press revealed in 2011 that a wide swath of Muslim organizations — and in fact entire communities — were targeted for surveillance by the department’s highly secretive “demographics unit.”
The approach taken by the NYPD raised serious constitutional concerns, and also some jurisdictional ones. NYPD officers were found to be operating in New Jersey without the knowledge of local authorities, and while we commend them for taking the trip — we’d certainly rather remain anywhere that is not New Jersey — that also posed some problems in the legal realm.
The AP reporters who broke the story, Matt Apuzzo and Adam Goldman, ultimately received a Pulitzer Prize for their work, and though the NYPD initially denied the whole shebang, they were ultimately forced into a tacit admission after disbanding the unit that never existed.
In 2012, Hashmi sought records that might show if he was, indeed, being watched by the police, and the department tried to use the Glomar response to shut down the lawsuit. It was a creative approach, because Glomar is rooted in federal jurisprudence, and Hashmi was suing in state court.
But on Monday, the judge nixed the NYPD’s claim, and said they had to follow the state Freedom of Information Law.
Robert Freeman, executive director of the state’s Committee on Open Government, which advocates for a robust FOIL, says the judge got it right in this instance, and that introducing Glomar as an option for New York agencies would “do damage” to the statute. As the judge pointed out, it’s really up to the legislature to determine whether the law should be altered to contain a Glomar-like provision.
“I think the court was correct,” Freeman says, “in refusing to carve out a means of saying no, without first hearing from the state legislature.”
At the very least, Freeman says, he thinks it’s important to protect the ability of judges to inspect the disputed records for themselves, so they can determine if withholding is really justified. A Glomar response precludes even such confidential, in-camera review by a judge, meaning no one but the NYPD would know if they were telling the truth about the sensitivity of the records.
Besides, Freeman says, New York’s FOIL statute already gives the police wide latitude to withhold records that might compromise police work. The NYPD, like every agency in the state, has three options when they don’t want to give something up; they can say yes we have it, but we’re not giving it to you, and here’s the reason; they can say we don’t have it, so we can’t possibly give it to you; or they can say here ya go!
The third and most common strategy is to delay, and delay, and delay, until the requester lives out his natural life and the problem solves itself.
It seems likely that, since one court has now endorsed the argument and another has not, a final decision is yet to come.
Omar Mohammedi, Hashmi’s attorney and also the attorney who brought the case in October, says the NYPD has all of the tools it needs already, and simply wants to ignore the law.
“What they said was forget about FOIL. As a matter of fact, they said FOIL is useless, it doesn’t apply to us,” Mohammedi tells the Voice. He expects the NYPD to appeal the most recent decision, but with the lengthy opinion released yesterday, he’s optimistic that his argument will prevail.