Law Firm of Omar T. Mohammedi, LLC, New York (Omar T. Mohammedi of
counsel), for Talib W. Adbur–Rashid and Samir Hashmi, for appellant/respondent.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for New York City Police Department and Raymond Kelly, respondents/appellants.
Mariko Hirose, New York, Jordan Wells, New York, and Christopher Dunn, New York, for New York Civil Liberties Union, amicus curiae.
Michael Price, New York, for Brennan Center for Justice, amicus curiae.
Davis Wright Tremaine LLP, New York (Alison Schary of counsel), for Reporters Committee for Freedom of the Press, Advance Publications, Inc., American Society of News Editors, AOL–Huffington Post, Association of Alternative Newsmedia, Association of American Publishers, Inc., Bloomberg L.P., Buzzfeed, Daily News, LP, the E.W. Scripps Company, First Look Media, Inc., Hearst Corporation, Investigative Reporting Workshop at American University, the National Press Club, National Press Photographers Association, the New York Times Company, North Jersey Media Group, Inc., Online News Association, the Seattle Times Company, Society for Professional Journalists and Tully Center for Free Speech, amici curiae.
FRIEDMAN, J.P., ANDRIAS, SAXE, RICHTER, JJ.
Opinion
Judgment, Supreme Court, New York County (Alexander W. Hunter, J.), entered September 25, 2014, denying the petition brought pursuant to CPLR article 78 seeking to compel respondents
New York City Police Department (NYPD) and NYPD Commissioner Raymond Kelly to disclose documents requested by petitioner Talib W. Abdur–Rashid pursuant to the Freedom of Information Law (FOIL) (Public Officers Law § 84
et seq. ), and granting respondents' motion to dismiss the proceeding, unanimously affirmed, without costs. Order, same court (Peter H. Moulton, J.), entered on or about November 17, 2014, which denied respondents' motion to dismiss the petition brought pursuant to CPLR article 78 seeking to compel them to disclose documents requested by petitioner Samir Hashmi pursuant to FOIL, and ordered respondents to submit an answer to the petition, unanimously reversed, on the law, without costs, the motion to dismiss granted, and the order to submit an answer vacated. The Clerk is directed to enter judgment dismissing the proceeding brought by petitioner Samir Hashmi.
FOIL does not prohibit respondents from giving a Glomar response to a FOIL request-that is, a response “refus[ing] to confirm or deny the existence of records” where, as here, respondents have shown that such confirmation or denial would cause harm cognizable under a FOIL exception (Wilner v. Natl. Sec. Agency, 592 F.3d 60, 68 [2d Cir.2009], cert. denied 562 U.S. 828, 131 S.Ct. 387, 178 L.Ed.2d 24 [2010] [interpreting the Freedom of Information Act [FOIA] ] ). Although petitioners contend that such a response is impermissible in the absence of express statutory authorization, the Glomar doctrine is “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” (Matter of Hanig v. State of N.Y. Dept. of Motor Vehs., 79 N.Y.2d 106, 110, 580 N.Y.S.2d 715, 588 N.E.2d 750 [1992] [internal quotation marks omitted] ), since it allows an agency to safeguard information that falls under a FOIL exemption.
Although federal case law regarding FOIA is not binding on this Court, it is “instructive” when interpreting FOIL provisions (Matter of Lesher v. Hynes, 19 N.Y.3d 57, 64, 945 N.Y.S.2d 214, 968 N.E.2d 451 [2012] [internal quotation marks omitted] ), and the application of the
Glomar doctrine to FOIA requests has been widely approved by federal circuit courts (
see
Wilner, 592 F.3d at 68 [citing decisions of four other circuit courts upholding or endorsing the Glomar doctrine as applied to FOIA requests] ). We have considered the differences between the two statutes, as identified by petitioners, amici curiae, and the
Hashmi court (
46 Misc.3d 712, 722–724,
998 N.Y.S.2d 596 [Sup.Ct., N.Y. County 2014] ), but find that they do not justify rejecting the Glomar doctrine in the context of FOIL.
Respondents' invocations of the Glomar doctrine were not affected
by an error of law (
see
Mulgrew v. Board of Educ. of the City School Dist. of the City of N.Y.,
87 A.D.3d 506, 507,
928 N.Y.S.2d 701 [1st Dept.2011],
lv. denied
18 N.Y.3d 806,
2012 WL 446222 [2012] ). Respondents met their burden to “articulate particularized and specific justification” for declining to confirm or deny the existence of the requested records, which sought information related to NYPD investigations and surveillance activities (
Matter of
Gould v. New York City Police Dept., 89 N.Y.2d 267, 275,
653 N.Y.S.2d 54,
675 N.E.2d 808 [1996] [internal quotation marks omitted] ). In particular, respondents showed that answering petitioners' inquiries would cause harm cognizable under the law enforcement and public safety exemptions of Public Officers Law § 87(2) (
see § 87(2)[e], [f] ;
see generally
Gould, 89 N.Y.2d at 274–275,
653 N.Y.S.2d 54,
675 N.E.2d 808 ).
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 records sought here are a subset of the records found properly exempt under FOIL in Matter of Asian Am. Legal Defense & Educ. Fund v. New York City Police Dept., 125 A.D.3d 531, 532, 5 N.Y.S.3d 13 (1st Dept.2015), lv. denied 26 N.Y.3d 919, 2016 WL 699225 (2016). We see no reason to depart from this recent precedent.
By this decision, we do not suggest that any FOIL request for NYPD records would justify a Glomar response. “An agency resisting disclosure of the requested records has the burden of proving the applicability of [a FOIL] exemption” and must submit “a detailed affidavit showing that the information logically falls within the claimed exemptions” and “the basis for [the agency's] claim that it can be required neither to confirm nor to deny the existence of the requested records” (Wilner, 592 F.3d at 68 [internal quotation marks omitted] ). In view of the heightened law enforcement and public safety concerns identified in the affidavits of NYPD's intelligence chief, Glomar responses were appropriate here.