ALBANY, N.Y. — The New York Police Department can use a Cold War-era legal tactic to conceal whether it put two Muslim men under surveillance, the state’s highest court ruled Thursday.
The Court of Appeals, in a split 4-3 decision, ruled that the NYPD was in its rights to decline acknowledging whether records existed pertaining to possible surveillance of a Talib Abdur-Rashid, a Manhattan imam, and Samir Hashmi, a former Rutgers University student.
In 2012, the two men filed separate Freedom of Information Law requests seeking any records the NYPD had relating to surveillance or an investigation. The NYPD responded by saying it could “neither confirm nor deny” the records even existed.
The men sued the NYPD separately in lawsuits prompted by a series of Pulitzer Prize-winning stories by The Associated Press on NYPD surveillance of Muslim groups in New York and New Jersey after the Sept. 11, 2001 terror attacks. After moving through lower courts, the two cases were combined for the Court of Appeals case.
In affirming a lower court ruling, the Court of Appeals said that the NYPD properly invoked the so-called Glomar doctrine in response to state FOIL requests by neither confirming nor denying whether the records existed.
In her written opinion for the majority, Chief Judge Janet DiFiore said “the NYPD’s response neither confirming nor denying the existence of the investigative or surveillance records sought is compatible with FOIL and the policy underlying those exemptions, which is to provide the public access to records without compromising a core function of government — the investigation, prevention and prosecution of crime.”
“I am extremely disappointed” by the ruling, said Omar Mohammedi, the Manhattan attorney representing both men.
Mohammedi said he was still reviewing the decision Thursday and didn’t know yet what his next move would be.
“I do believe New Yorkers have lost a lot of their rights and their open government,” he said.
“We are pleased that the Court found that a Glomar response is permissible under FOIL and was used appropriately by the NYPD here,” Sgt. Jessica McRorie, an NYPD spokeswoman, said in a written statement.
She added that the NYPD has rarely used the Glomar doctrine and “will continue to do so only on a very limited basis and where appropriate.”
The Glomar doctrine is named for the Hughes Glomar Explorer, a massive salvage ship built by Howard Hughes, the eccentric industrialist who died in 1976. The CIA had used the ship in 1974 to retrieve a portion of a Soviet submarine that had sunk in the Pacific Ocean in 1968, killing everyone aboard.
The Glomar attempted to lift the sub to the surface, but most of the sub broke apart and fell back to the ocean floor.
When a journalist sought information on the Hughes-built ship in 1976, a federal court issued a ruling that allowed the CIA to “neither confirm nor deny” whether records existed on the mission. The Glomar doctrine has since been used by agencies if information falls within certain exemptions.AlertMe