Abdur-Rashid v. N.Y.C. Police Dep't

• Decision Date: 02 June 2016
• Citation: 2016 N.Y. Slip Op. 04318,37 N.Y.S.3d 64,140 A.D.3d 419
• Parties: In re Talib W. ABDUR–RASHID, Petitioner–Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents–Respondents. In re Samir Hashmi, Petitioner–Respondent, v. New York City Police Department, et al., Respondents–Appellants. New York Civil Liberties Union, Brennan Center for Justice, 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.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 419

37 N.Y.S.3d 64

2016 N.Y. Slip Op. 04318

In re Talib W. ABDUR–RASHID, Petitioner–Appellant,

v.NEW YORK CITY POLICE DEPARTMENT, et al., Respondents–Respondents.

In re Samir Hashmi, Petitioner–Respondent,

v.New York City Police Department, et al., Respondents–Appellants.

New York Civil Liberties Union, Brennan Center for Justice, 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.

Supreme Court, Appellate Division, First Department, New York.

June 2, 2016.

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.

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...