Court of Appeals February Session: Arguments of Interest for February 6, 2018

The Court of Appeals returns for the February Session on Tuesday, February 6, 2018. First on the agenda for the Court is Chief Judge Janet DiFiore’s State of Our Judiciary speech earlier in the morning at 11:30 a.m. The Chief Judge is expected to report on the progress of her Excellence Initiative, which was designed to be a detailed and comprehensive evaluation of court processes and procedures to identify needed areas for reform, and to propose a range of reforms to the court system to improve the “quality of justice” for New Yorkers. A livestream of Chief Judge DiFiore’s speech can be seen here.

Then at 2 p.m., the Court gets back to its argument calendar, with four cases on the docket for the day (the Court’s case summaries can be found here). The Court will confront a wide range of issues, including (1) whether an agency subject to the Freedom of Information Law may deny a request for records without confirming whether or not the requested records even exist, (2) whether a criminal defendant’s confession that was obtained 25-28 hours after his arrest and after multiple interrogations may be considered voluntarily made and used against him without the People first establishing that the defendant was provided with access to food, water, a bathroom, and sleep during that time, and (3) whether, in an insurance dispute over long-term environmental contamination, liability for the damages caused can be allocated to insurers for time periods beyond the periods provided in the applicable policies.

No. 19     Matter of Abdur-Rashid v New York City Police Department
                 Matter of Hashmi v New York City Police Department

After September 11th, the law enforcement world changed dramatically. The PATRIOT Act gave the intelligence community far greater surveillance powers, and some of the tactics employed filtered down to the level of the local police. In the wake of the attacks, the New York City Police Department began to conduct covert surveillance of Muslim communities in New York and New Jersey.  According to a series of Pulitzer Prize-winning Associated Press articles, which ran in 2011 and can be found here, “the NYPD dispatched undercover officers into minority neighborhoods as part of a human mapping program.  Police also used informants, known as ‘mosque crawlers,’ to monitor sermons, even when there was no evidence of wrongdoing” (Highlights of AP’s Pulitzer Prize-winning Probe into NYPD Intelligence Operations).

When the surveillance program was revealed, Talib Abdur-Rashid and Samir Hashmi filed separate FOIL requests with the NYPD, and asked for copies of any records relating to the NYPD’s surveillance or investigation of them personally or of organizations with which they were affiliated. In particular, Abdur-Rashid was Imam at Mosque of Islamic Brotherhood in Manhattan, and Hashmi, a Rutgers student, was an officer of the University’s Muslim Student Association.

The NYPD, predictably, denied the requests under FOIL’s law enforcement and public safety exemptions, but would not confirm or deny whether any records actually existed. Basically, the NYPD didn’t want to say whether the men or their organizations had been surveilled or investigated, so it just refused to say whether it was withholding any records that would have been responsive to their requests. That way, the NYPD could in denying the requests keep secret whether any investigation was done.

When Abdur-Rashid and Hashmi challenged the denials of their FOIL requests in court (in separate Article 78 proceedings), the trial courts split. In Abdur-Rashid, Supreme Court adopted the NYPD’s argument that it should be allowed, under FOIL, to deny the request without confirming or denying whether any responsive records exist. This rule, which first arose in Phillippi v CIA (546 F2d 1009 [D.C. Circuit 1976]) and is known as the Glomar doctrine, is widely applied under the federal Freedom of Information Act, but has not been adopted expressly under FOIL. The rationale, the federal courts have explained, is that where the mere fact that responsive documents either do or do not exist would fall within a FOIA exemption—like disclosing that fact would harm national security interests—the responding agency should be permitted to deny the request without confirming or denying the existence of the record.

In Hashmi, however, Supreme Court went the other way. The Court rejected the NYPD’s argument, holding that “adoption of the Glomar doctrine ‘would effect a profound change to a statutory scheme that has been finely calibrated by the legislature’ and ‘would build an impregnable wall against disclosure of any information concerning the NYPD’s anti-terrorism activities.'” That change, the Court reasoned, should come from the Legislature, not the courts.

Resolving this conflict at the trial level, the Appellate Division, First Department sided with the NYPD, and formally adopted the Glomar doctrine for the first time in New York. The Court held that the doctrine falls within the scope of FOIL’s purposes because it is not expanding any FOIL exemption to disclosure, but only allowing the responding agency to withhold information subject to those exemptions. In these cases, the Court held, that means withholding the information concerning whether the NYPD even has any files responsive to the FOIL requests. The Court held that the NYPD was justified in invoking the law enforcement and public safety exemptions to withhold that information because the evidence showed 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.”

The Court of Appeals will now decide whether there is, or should be, a state analog to the federal Glomar doctrine.  Or whether that question should be left up to the Legislature entirely.

The Appellate Division, First Department’s order can be found here.

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