The NYPD has a well-documented record of spying on law-abiding Muslims, and yet refuses to acknowledge even the existence of information that relates to its controversial surveillance program. And after yesterday's ruling from the First Appellate Division of the New York Supreme Court, that doesn't have to change: the court ruled that the department's use of a Cold War-era defense was appropriate, and so the NYPD does not have to confirm or deny the existence of documents related to the surveillance of two Muslim men who filed records requests in 2012.
The two lawsuits were brought by Talib Abdur-Rashid, an imam, and Samir Hashmi, a former student at Rutgers University. After the Associated Press began publishing its Pulitzer-winning series on the NYPD's surveillance of Muslim communities, they requested records on themselves and organizations with which they'd been involved. Since then, two lower courts have disagreed on whether the NYPD should have to provide the information under Freedom of Information Law.
In March, an attorney for Abdur-Rashid and Hashmi argued that the NYPD was out of line in invoking the Glomar response, the Cold War-era exemption that allows federal agencies to get away with not acknowledging or denying the existence of sensitive records if doing so would pose a risk: Omar Mohammedi argued that "[Glomar] is a blanket exemption that does not exist under FOIL...We just need the NYPD to say, 'we have the documents; we cannot produce them.'"
The NYPD's attorney, meanwhile, argued that the mere act of disclosing the existence of records on the appellants could pose a risk to counterterrorism investigations.
In its decision, the appellate court accepted the NYPD's defense, writing that "the affidavits submitted by NYPD's Chief of Intelligence establish 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." The decision also notes that this doesn't mean the Glomar response can be applied unilaterally to any and all FOILs request for NYPD documents: the department would have to prove in each case that acknowledging the existence of the documents requested would pose a risk.
Mohammedi called the court's ruling "a sad day for an Open Government theory under the Freedom of Information Law requirements," and said that he plans to appeal the decision. The city's Law Department, meanwhile, says that "we are all safer because of this ruling."
This decision comes five months after the city settled Raza v. City of New York, filed in 2013 after the AP's reports revealed the extent of the NYPD’s surveillance of Muslims in the city, and Handschu v. City of New York, filed in 1971 to stop the NYPD from spying on political groups like the Blank Panthers. The City didn't admit any wrongdoing in those settlements, but agreed to ban investigations motivated by race, religion, or ethnicity. An independent monitor is also now overseeing the NYPD's secret counterterrorism investigations, to make sure that the department isn't illegally surveilling political or religious activity.