Hashmi v. N.Y.C. Police Dep't

• Decision Date: 17 November 2014
• Docket Number: 101560/2013.
• Citation: 46 Misc.3d 712,2014 N.Y. Slip Op. 24357,998 N.Y.S.2d 596
• Parties: Samir HASHMI, Petitioner, v. NEW YORK CITY POLICE DEPARTMENT, and Raymond Kelly in his official capacity as Commissioner of the New York City Police Department, Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.
• Court: New York Supreme Court

46 Misc.3d 712

998 N.Y.S.2d 596

2014 N.Y. Slip Op. 24357

Samir HASHMI, Petitioner

v.NEW YORK CITY POLICE DEPARTMENT, and Raymond Kelly in his official capacity as Commissioner of the New York City Police Department, Respondents. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

101560/2013.

Supreme Court, New York County, New York.

Nov. 17, 2014.

Jeffrey S. Dantowitz, Esq., Assistant Corporation Counsel, for respondent NYPD.

Omar T. Mohammedi, Esq., Law Firm of Omar T. Mohammedi, petitioner Samir Hashmi.

Opinion

PETER H. MOULTON, J.

In this Article 78 proceeding petitioner Samir Hashmi seeks to obtain records from the New York City Police Department (“NYPD”) pursuant to the state's Freedom of Information Law (Public Officers Law § 84 et seq., commonly referred to as “FOIL”). The records sought in Hashmi's October 2012 FOIL request pertain to alleged surveillance and investigation by the NYPD of Hashmi, and of the Rutgers University Muslim Student Association where he served as treasurer while enrolled as a student at Rutgers. The request was prompted by a series of newspaper articles by the Associated Press that concerned NYPD surveillance of various Muslim individuals, groups and Mosques in New York, New Jersey and Connecticut.

The NYPD responded to Hashmi's FOIL request by refusing to state whether or not it had records in its possession responsive to the request. According to the NYPD, the mere disclosure of the existence of such documents would “cause substantial harm to the integrity and efficacy of NYPD's investigations of terrorist activities and could endanger the safety of people working undercover, or who otherwise provide information to the NYPD.”¹

Information that might disclose non-routine law enforcement techniques, or reveal the identities of undercover operatives or others providing confidential information to the police, are types of documents that are specifically exempt from FOIL disclosure. (See POL §§ 87[2][e][iii], [iv].) However, in order to invoke these and other exemptions, FOIL provides that a law enforcement agency must first acknowledge the existence of responsive documents. Frequently, it is necessary for a court to conduct an in camera inspection of responsive documents for which an exemption is claimed in order to determine whether the agency has properly invoked that exemption.

Here the NYPD seeks to avoid that process on the ground that its mere acknowledgment of the existence of the documents sought by Hashmi would impair its ability to combat terrorism, even if the content of the documents would be exempt from disclosure under exceptions set forth in FOIL.

In making this argument the NYPD asks this court to adopt the Glomar doctrine, a common law exception to disclosure that federal courts have engrafted onto the federal Freedom of Information Act (5 U.S.C. § 552, commonly referred to as “FOIA”). The Glomar doctrine was first adopted in two cases involving FOIA requests that sought information about the CIA's use of Howard Hughes' salvage ship the “Glomar Explorer” in recovering a Soviet nuclear submarine. In Phillippi v. CIA , 546 F.2d 1009 (D.C.Cir.1976) and Military Audit Project v. Casey , 656 F.2d 724 (D.C.Cir.1981) the D.C. Circuit allowed the CIA and Department of Defense to neither confirm nor deny the existence of documents involving the use of the Glomar Explorer.

Before the court is respondents' motion to dismiss the petition. As discussed at greater length below, respondents argue that this court should adopt the federal Glomar doctrine in evaluating Hashmi's FOIL request and let stand the NYPD's denial of petitioner's request.

BACKGROUND

In a series of articles in 2011–12, the Associated Press revealed that the NYPD had engaged in extensive surveillance of Muslims, including Muslim university and college students, in New York, New Jersey, and Connecticut. The articles stated that Rutgers University was one of the schools where Muslim students were subject to NYPD surveillance.²

Hashmi alleges that he was a student at Rutgers University from 2006 to 2011. He alleges that as a member of the Rutgers Muslim Students Association, he condemned terrorism while raising awareness about Islam. He contends that he has never been charged with a crime, and has done nothing to warrant surveillance by the NYPD. There is nothing in the record before the court that contradicts those statements. Hashmi asserts in his affidavit that the NYPD “spied” on him “for no basis except that I am a Muslim.”³

Hashmi submitted his FOIL request to the NYPD on October 23, 2012. He sought seven overlapping categories of documents:

1. All records related to any investigation of Samir Hashmi, between 2006–2012, including the results of those investigations.

2. All records related to Samir Hashmi relied upon by the NYPD that led to any report being filed.

3. All records related to the surveillance of Samir Hashmi by the NYPD.

4. All records related and relied upon on the surveillance [sic] of Samir Hashmi used by the NYPD.

5. All directives and/or memoranda sent or received by the NYPD related to surveillance of Samir Hashmi from 2006–2012.

6. All directives and/or memoranda sent or received by the NYPD related to surveillance of the Rutgers Muslim Student Associations from 2006–2012.

7. All directives and/or memoranda sent or received by the NYPD related to the surveillance of Samir Hashmi, as Treasurer for Rutgers Muslim Student Association from 2006–2009.

In a letter dated November 13, 2012, a NYPD Records Access Officer acknowledged receipt of Hashmi's request, and estimated that the department would respond in twenty business days.

More than six months later the NYPD denied Hashmi's request in a letter dated June 28, 2013. The letter stated that Hashmi's request did not include a certification of Hashmi's identity. The NYPD also noted that Hashmi had not consented to the release of his records to his attorney.

The NYPD's denial went on to state that even if Hashmi's request had been accompanied by a certification of identity, the information sought was “on its face, information that is exempt from FOIL disclosure.” The denial explicitly did not admit that records responsive to Hashmi's request were in the NYPD's possession. Instead, the denial stated conditionally that if such records were in the NYPD's possession they would be protected by several FOIL exemptions set forth in the denial:

1. Disclosure of the records would interfere with law enforcement investigations or pending judicial proceedings. POL § 87(2)(e)(i).

2. Disclosure of the records would identify a confidential source or confidential information relating to a criminal investigation. POL § 87(2)(e)(iii).

3. Disclosure of the records would reveal non-routine criminal investigative techniques or procedures. POL § 87(2)(e)(iv).

4. Disclosure of the records would endanger the life or safety of any person. POL § 87(2)(f).

5. Disclosure of the records would constitute an unwarranted invasion of privacy. POL §§ 87(2)(b), 89(2)(b).

6. Disclosure of the records would reveal protected pre-decisional inter-agency or intra-agency materials. POL § 87(2)(g).

7. Disclosure of the records would violate state or federal statutes that specifically exempt such documents from disclosure. POL § 87(2)(a).

Hashmi took an administrative appeal of the NYPD's denial. In a letter dated August 7, 2013, the Records Access Appeals Officer denied the appeal. The August 7th letter reiterated the objection that Hashmi's identity had not been properly certified in the request. It also stated that the records requested had not been properly identified “in a matter that would evoke a path that could lead to the retrieval of responsive records with reasonable efforts.” The denial letter faulted, inter alia, the breadth of the records sought, and Hashmi's failure to identify the NYPD unit that may have been involved in the alleged surveillance.

The NYPD's primary reason for the denial was that the records sought, if they existed, would be exempt from disclosure under the FOIL provisions cited by the Records Access Officer that are set forth above. Consistent with its position in the instant motion to dismiss, the NYPD did not state whether or not it had any documents responsive to the request.

As these administrative challenges progressed, the NYPD's Muslim Surveillance program became an issue in the 2013 mayoral race and media outlets carried stories concerning the candidates' positions with respect to the program.⁴ After his election, Mayor Bill De Blasio disbanded the NYPD unit that conducted the surveillance.⁵

Hashmi brought this Article 78 proceeding to challenge the NYPD's denial of the his FOIL request. Respondents moved to dismiss the petition. That motion is now before the court.

DISCUSSION

A. New York State's Freedom of Information Law

The purpose of the Freedom of Information Law is to further governmental transparency and protect the public's right to know. Accordingly, any FOIL exemptions are interpreted narrowly. (See Matter of Markowitz v. Serio, 11 N.Y.3d 43, 51, 862 N.Y.S.2d 833, 893 N.E.2d 110 [2008].) FOIL imposes a broad duty of disclosure upon government agencies. Government records are “presumptively open” to the public, statutory exemptions to disclosure are “narrowly construed,” and the agency must articulate a “particularized and specific justification” for nondisclosure. (Matter of New York Civil Liberties Union v. City of Schenectady, 2 N.Y.3d 657, 661, 781 N.Y.S.2d 267, 814 N.E.2d 437 [2004]citing Matter of Gould v. New York City Police Dep't, 89 N.Y.2d 267, 274–275, 653 N.Y.S.2d 54, 675 N.E.2d 808 [1996] [internal quotations omitted].)

The “narrowly constructed” categories of FOIL exemptions are collected at POL §§ 87(2), 89(2). (Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979].) The burden on proving any exemption rests with the respondent agency. (Markowitz, supra, at 50–51, 862 N.Y.S.2d 833, 893 N.E.2d...