| Matter of Abdur-Rashid v New York City PoliceDept. |
| 2016 NY Slip Op 04318 [140 AD3d 419] |
| June 2, 2016 |
| Appellate Division, First Department |
[*1]
| In the Matter of Talib W. Abdur-Rashid,Appellant, v New York City Police Department et al., Respondents. In theMatter of Samir Hashmi, Respondent, v New York City Police Department et al.,Appellants. |
Law Firm of Omar T. Mohammedi, LLC, New York (Omar T. Mohammedi ofcounsel), for Talib W. Adbur-Rashid and Samir Hashmi, for appellant/respondent.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), forNew York City Police Department and Raymond Kelly, respondents/appellants.
Mariko Hirose, New York, Jordan Wells, New York, and Christopher Dunn, NewYork, 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 ReportersCommittee for Freedom of the Press, Advance Publications, Inc., American Society ofNews 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, InvestigativeReporting Workshop at American University, the National Press Club, National PressPhotographers Association, the New York Times Company, North Jersey Media Group,Inc., Online News Association, the Seattle Times Company, Society for ProfessionalJournalists and Tully Center for Free Speech, amici curiae.
Judgment, Supreme Court, New York County (Alexander W. Hunter, J.), entered[*2]September 25, 2014, denying the petition broughtpursuant to CPLR article 78 seeking to compel respondents New York City PoliceDepartment (NYPD) and NYPD Commissioner Raymond Kelly to disclose documentsrequested by petitioner Talib W. Abdur-Rashid pursuant to the Freedom of InformationLaw (FOIL) (Public Officers Law § 84 et seq.), and grantingrespondents' motion to dismiss the proceeding, unanimously affirmed, without costs.Order, same court (Peter H. Moulton, J.), entered on or about November 17, 2014, whichdenied respondents' motion to dismiss the petition brought pursuant to CPLR article 78seeking to compel them to disclose documents requested by petitioner Samir Hashmipursuant 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 theorder to submit an answer vacated. The Clerk is directed to enter judgment dismissingthe proceeding brought by petitioner Samir Hashmi.
FOIL does not prohibit respondents from giving a Glomar response to a FOILrequest—that is, a response "refus[ing] to confirm or deny the existence ofrecords" where, as here, respondents have shown that such confirmation or denial wouldcause harm cognizable under a FOIL exception (Wilner v National Sec. Agency,592 F3d 60, 68 [2d Cir 2009], cert denied 562 US 828 [2010] [interpreting theFreedom of Information Act (FOIA) (internal quotation marks omitted)]). Althoughpetitioners contend that such a response is impermissible in the absence of expressstatutory authorization, the Glomar doctrine is "consistent with the legislative intent andwith the general purpose and manifest policy underlying FOIL" (Matter of Hanig vState of N.Y. Dept. of Motor Vehs., 79 NY2d 106, 110 [1992] [internal quotationmarks omitted]), since it allows an agency to safeguard information that falls under aFOIL 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 NY3d 57, 64 [2012] [internalquotation marks omitted]), and the application of the Glomar doctrine to FOIA requestshas been widely approved by federal circuit courts (see Wilner, 592 F3d at 68[citing decisions of four other circuit courts upholding or endorsing the Glomar doctrineas applied to FOIA requests]). We have considered the differences between the twostatutes, as identified by petitioners, amici curiae, and the Hashmi court (46 Misc3d 712, 722-724 [Sup Ct, NY County 2014]), but find that they do not justify rejectingthe Glomar doctrine in the context of FOIL.
Respondents' invocations of the Glomar doctrine were not affected by an error of law(see Mulgrew v Board of Educ.of the City School Dist. of the City of N.Y., 87 AD3d 506, 507 [1st Dept 2011],lv denied 18 NY3d 806 [2012]). Respondents met their burden to "articulateparticularized and specific justification" for declining to confirm or deny the existence ofthe requested records, which sought information related to NYPD investigations andsurveillance activities (Matter of Gould v New York City Police Dept., 89 NY2d267, 275 [1996] [internal quotation marks omitted]). In particular, respondents showedthat answering petitioners' inquiries would cause harm cognizable under the lawenforcement and public safety exemptions of Public Officers Law § 87 (2)(see § 87 [2] [e], [f]; see generally Gould, 89 NY2d at274-275).
The affidavits submitted by NYPD's Chief of Intelligence establish that confirmingor denying the existence of the records would reveal whether petitioners or certainlocations or organizations were the targets of surveillance, and would jeopardize NYPDinvestigations and counterterrorism efforts. The records sought here are a subset of therecords found properly exempt under FOIL in Matter of Asian Am. Legal Defense & Educ. Fund v New YorkCity Police Dept. (125 AD3d 531, 532 [1st Dept 2015], lv denied 26NY3d 919 [2016]). We see no reason to depart from this recent precedent.
By this decision, we do not suggest that any FOIL request for NYPD records wouldjustify a Glomar response. "An agency resisting disclosure of the requested records hasthe burden of proving the applicability of [a FOIL] exemption" and must submit "adetailed affidavit showing that the information logically falls within the claimedexemptions" and "the basis for [the agency's] claim that it can be required neither toconfirm nor to deny the existence of the requested records" (Wilner, 592 F3d at68 [internal quotation marks [*3]omitted]). In view of theheightened law enforcement and public safety concerns identified in the affidavits ofNYPD's intelligence chief, Glomar responses were appropriate here.Concur—Friedman, J.P., Andrias, Saxe and Richter, JJ. [Prior Case History:45 Misc 3d 888.]