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

• Decision Date: 29 March 2018
• Docket Number: No. 19,19
• Parties: In the Matter of Talib W. ABDUR–RASHID, Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Respondents. In the Matter of Samir Hashmi, Appellant, v. New York City Police Department, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

31 N.Y.3d 217

100 N.E.3d 799

76 N.Y.S.3d 460

In the Matter of Talib W. ABDUR–RASHID, Appellant,

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

In the Matter of Samir Hashmi, Appellant,

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

No. 19

Court of Appeals of New York.

Decided March 29, 2018

Law Firm of Omar T. Mohammedi, LLC, New York City (Omar T. Mohammedi and Elizabeth K. Kimundi of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York City (Devin Slack, John Moore and Richard Dearing of counsel), for respondents.

Davis Wright Tremaine LLP, Washington, D.C. (Alison Schary of counsel), and New York City (John M. Browning of counsel), and Reporters Committee for Freedom of the Press, Washington, D.C. (Bruce D. Brown, Katie Townsend and Adam A. Marshall of counsel), for Reporters Committee for Freedom of the Press and others, amici curiae.

New York Civil Liberties Union Foundation, New York City (Mariko Hirose, Robert Hodgson and Christopher Dunn of counsel), for New York Civil Liberties Union, amicus curiae.

Scott D. McNamara, District Attorneys Association of the State of New York (Tammy J. Smiley, Andrea M. DiGregorio and Monica M.C. Leiter of counsel), for District Attorneys Association of the State of New York, amicus curiae.

Kelley Drye & Warren LLP, New York City (Michael Yim of counsel), for New York City Council's Black, Latino and Asian Caucus, amicus curiae.

OPINION OF THE COURT

Chief Judge DiFIORE.

The issue presented is whether an agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request ( Public Officers Law § 84 et seq. [FOIL] ) when necessary to safeguard statutorily exempted information. Under these circumstances, we hold that it may and therefore affirm the Appellate Division order, which reached the same conclusion.

The federal courts have long permitted federal agencies responding to Freedom of Information Act ( 5 USC § 552 [FOIA] ) requests to neither confirm nor deny the existence of responsive documents—a so-called Glomar response—when the agency's acknowledgement that it possesses responsive documents would itself reveal information protected from disclosure under a FOIA exemption. In the context presented here, where a law enforcement agency was asked to disclose records relating to a police investigation and surveillance activities involving two specific individuals and associated organizations—information protected under the law enforcement and public safety exemptions of Public Officers Law § 87 —such a response is compatible with the FOIL statute and our precedent interpreting it.

In October 2012, petitioners Talib Abdur–Rashid and Samir Hashmi separately submitted targeted FOIL requests seeking any records possessed by the New York City Police Department (N.Y.PD) related to any "surveillance" and "investigation" of them as individuals and of certain specified entities with which they were associated (including a mosque and a university student association, respectively) for the six-year period immediately preceding the request. The agency denied the requests, stating in each case that the information, "if possessed by the NYPD," would be protected from disclosure under various statutory exemptions, including the law enforcement, public safety and personal privacy provisions. After the NYPD adhered to those decisions on administrative appeal, petitioners commenced separate CPLR article 78 proceedings challenging the determinations. Petitioners asserted that the NYPD was engaged in an ongoing domestic surveillance program in which, as alleged in press articles, it had targeted Muslim individuals, places of worship, businesses, schools, student groups and the like. It was in this context that petitioners attempted to ascertain whether they were subjects of surveillance or investigation, noting that they had supplied certifications of identity waiving their personal privacy interests and authorizing the NYPD to release responsive records to their attorneys.¹

The NYPD's response, although styled as a motion to dismiss the petition in each case, did not assert a procedural objection but defended the FOIL responses on the merits. The agency explained the basis for its denial of the FOIL requests and its refusal to disclose whether it possessed responsive documents in a 22–page affidavit of its Chief of Intelligence, Thomas Galati. Without offering any specific information relating to petitioners, Chief Galati described the NYPD's ongoing and wide-ranging counterterrorism efforts, acknowledging that the agency was actively engaged in covert surveillance and other intelligence gathering in its effort to preempt acts of terrorism in New York City, which remains a prime target in the wake of the World Trade Center attacks. The Galati affidavit averred that disclosure of whether the NYPD possesses records responsive to the FOIL requests would necessarily reveal whether petitioners had been the subjects of its investigation, information which—particularly if aggregated—would provide unprecedented and invaluable information concerning NYPD counterterrorism strategies, operations, tactics and techniques to those planning future terrorist attacks. The Galati affidavit also averred that the NYPD intelligence strategies are monitored by individuals and organizations with the goal of developing counterintelligence measures, and the greatest vulnerability to the NYPD Intelligence Bureau is the release of even "seemingly innocuous information" which would inexorably reveal sources from which information is gathered by the NYPD.

The proceedings were assigned to different justices for resolution. In Abdur–Rashid, Supreme Court granted the NYPD's motion to dismiss and denied the petition, reasoning that the NYPD demonstrated that its response—including its refusal to acknowledge whether responsive records existed—was not prohibited by FOIL as the records sought were exempt from disclosure under the statute and the cases interpreting it ( 45 Misc.3d 888, 992 N.Y.S.2d 870 [Sup. Ct., NY County 2014] ). In Hashmi, although not disputing that the content of responsive records may be exempt, Supreme Court, among other things, denied the motion to dismiss on the rationale that the NYPD's failure to acknowledge whether or not responsive records existed was impermissible under FOIL ( 46 Misc.3d 712, N.Y.S.2d 596 [Sup. Ct., NY County 2014] ). Hearing the cases together, the Appellate Division affirmed in Abdur–Rashid and, among other things, reversed the order denying the motion to dismiss in Hashmi, granting the motion and dismissing the petition ( 140 A.D.3d 419, 37 N.Y.S.3d 64 [1st Dept. 2016] ). The Appellate Division reasoned that, through the affidavits of Chief Galati, the NYPD had "establish[ed] 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" in contravention of the law enforcement and public safety exemptions (see id. at 421, 37 N.Y.S.3d 64 ). Thus, the Court held that NYPD's refusal to confirm or deny the existence of responsive records was consistent with FOIL and the cases construing it. We granted petitioners leave to appeal ( 28 N.Y.3d 908, 47 N.Y.S.3d 223, 69 N.E.3d 1019 [2016] ).

To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public (see Public Officers Law § 84 ). The statute is based on the policy that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" ( Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979] ). Consistent with the legislative declaration in Public Officers Law § 84, FOIL is liberally construed and its statutory exemptions narrowly interpreted (see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ). All records are presumptively available for public inspection and copying, unless the agency satisfies its burden of demonstrating that "the material requested falls squarely within the ambit of one of [the] statutory exemptions" ( Fink, 47 N.Y.2d at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 ). "While FOIL exemptions are to be narrowly read, they must of course be given their natural and obvious meaning where such interpretation 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 and citation omitted] ). Nor may the courts order disclosure of records deemed confidential by the Legislature: "[o]nce it is determined that the requested material falls within a FOIL exemption, no further [balancing of interests] or policy analysis is required" ( id. at 112, 580 N.Y.S.2d 715, 588 N.E.2d 750 ).²

From the outset of FOIL, the legislature expressly exempted certain agency records from public access, recognizing that there is sometimes "a legitimate need on the part of government to keep some matters confidential" ( Fink, 47 N.Y.2d at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 ). For example, the law enforcement exemption and the public safety exemption, which the NYPD relied on here, protect records that, if disclosed, would interfere with law enforcement investigations or judicial proceedings, reveal nonroutine criminal investigative techniques or endanger the life or safety of any person ( Public Officers Law § 87[2][e][i], [iv], [f] ). When interpreting these provisions, we have emphasized that "the purpose of [FOIL] is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution" ( Matter of...