Chief Judge Janet DiFiore

In a ruling that straddles the intersection of the public's right to know and counterterrorism secrecy, New York's highest court on Thursday decided that the New York City Police Department can legally evade questions about whether it has records relating to the surveillance of Muslim groups.

In a 4-3 decision, the majority court ruled that the NYPD was within its rights to use the so-called Glomar response when it received Freedom of Information Law requests from two Islamic men in 2012 who wanted records tied to any police surveillance of them or their mosque or student association.

The “Glomar response”—named after a secrecy tactic first used by the CIA during the 1970s—is essentially a nonresponse. The NYPD, which has begun using it on rare occasions, will avoid giving FOIL-requested answers and instead simply state that it “can neither confirm nor deny” the existence of the investigation or effort being asked about.

In Thursday's majority decision, Chief Judge Janet DiFiore wrote that the case presented the issue of whether a government agency in New York State may decline to acknowledge that FOIL-requested records exist if giving such a response protects statutorily exempted information.

Her opinion, and the judges in dissent, sought to balance FOIL's purpose of promoting open government and public accountability against what DiFiore described as the “inherent dangers of premature disclosure” that, especially in the counterterrorism context, could lead to loss of life for the public or law enforcement.

DiFiore, joined by Judges Eugene Fahey, Michael Garcia and Paul Feinman, wrote that, in the context of the NYPD's surveillance or investigation of certain Islamic people and organizations, the NYPD's nonresponsive Glomar statement made sense.

“The need for government confidentiality may be at its zenith when a law enforcement agency is undertaking a covert investigation of individuals or organizations, where the lives of the public, cooperators and undercover officers may hang precariously in the balance and the reputation, livelihood or liberty of the subject may be at stake,” she wrote.

She also knocked down plaintiffs Talib Abdur-Rashid and Samir Hashmi's argument that to avoid answering whether any records exist was to undercut the purpose of FOIL.

“Taken to its logical extreme, petitioners argue a Catch-22 paradigm where the NYPD would have to acknowledge the existence of an investigation involving a particular person notwithstanding that the contents of any responsive records would be exempt and revelation of their existence would result in the same harm—justifying exemption of the contents—whether the FOIL request comes from the target, a newspaper or some other member of the public,” she wrote.

Responses to the high-court decision came swiftly on Thursday, as Omar Mohammedi, the civil rights lawyer for Abdur-Rashid and Hashmi, as well as amicus counsel at the New York Civil Liberties Union, complained that the ruling will bolster the NYPD's penchant for secrecy in its actions.

“I am extremely disappointed, because I am really concerned not only about my clients but also about New Yorkers' welfare,” Mohammedi said in a phone interview.

Mohammedi said that he and his clients were “still considering next steps,” and he declined to say whether they will attempt to appeal Thursday's ruling.

“A Glomar response does not allow a court to do its job” in assessing a FOIL request for information, he said. “It does not even open the door. How can a court assess if what they [the NYPD] is claiming is true, that there are exempted public safety issues” tied to the requested information.

“And Glomar is a blanket objection,” he claimed, adding that “the dissenting justices were aggressive in saying that the majority had made a decision that contradicts previous precedent that blanket objections are not allowed under FOIL.”

He also said the majority had made “a policy decision” that should only be made by the Legislature.

Bobby Hodgson, an NYCLU staff attorney, joined the chorus of complaints, saying in a statement that “given the NYPD's history of spying on Muslim-Americans and political protesters, it is concerning that today's ruling opened the door to even more secrecy regarding these practices.”

But the NYPD, in its own statement, played down its use of the Glomar response.

“In a very few FOIL matters, merely confirming the existence of records that cannot be disclosed under FOIL would itself raise issues about prior or ongoing confidential law enforcement activities,” Kellyann Ort, a spokeswoman, said. She added that “to date the NYPD has rarely used the legal Glomar doctrine,” and said that “the department will continue to do so only on a very limited basis and where appropriate.”

Among the dissenting judges, Rowan Wilson, who concurred in part and dissented in part, wrote that the case should have been sent back to the trial court for more development of the record and evaluation.

“Even were the record not riddled with opportunities for further development, the appropriate remedy after resolving the thorny theoretical issue in this case of first impression would be to remit the petitions to the Supreme Court for consideration unclouded by the overarching and overwhelming question of whether an agency may ever refuse to confirm or deny the existence of responsive records. Simply put, 'we lack the benefit of an evaluation of th[ese] issue[s] by the [lower] court[s],'” he wrote, quoting Florez v. Cent. Intelligence Agency, 829 F3d 178, 183-184 (2d Cir. 2016).

Judge Leslie Stein, who dissented fully and was joined by Judge Jenny Rivera, wrote that “in my view, authorization for such [Glomar] responses cannot be found in … the language of FOIL, and the majority's determination to the contrary sanctions a blanket exemption from disclosure for a vast amount of information and records. Granting such a broad judicial exemption is at odds with the express will of the legislature.”

The dispute leading to Thursday's Court of Appeals decision began in October 2012, when Abdur-Rashid, a Manhattan resident, and Hashmi, a Rutgers University student, lodged separate FOIL requests seeking NYPD records linked to any surveillance and investigation of them as individuals or entities with which they were associated, the majority explained. Their requests and subsequent lawsuits were reportedly prompted by Pulitzer Prize-winning Associated Press reports that indicated they were the subjects of an anti-terror surveillance program.

The majority's decision Thursday affirmed an Appellate Division, First Department, opinion on the issue.

Devin Slack, a deputy chief of the city Law Department's Appeals Division, represented the police department in the appeal. A Law Department spokesman declined to comment and deferred to the NYPD's statement.