Transparency

Police Can Refuse to Say Whether Records Exist, New York's Highest Court Rules

In a case brought by two Muslim men seeking surveillance records on themselves, the court approves the NYPD's "neither confirm nor deny" response.

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Talib Abdur-Rashid (left) // Bryan Smith/ZUMAPRESS/Newscom

New York's highest court ruled today that the NYPD can refuse to confirm or deny the existence of public records, a decision that transparency and press freedom groups called a blow to open government.

In a lawsuit brought by two Muslim men seeking NYPD surveillance records on themselves under New York's Freedom of Information Law (FOIL), the state Court of Appeals said the department can invoke the so-called "Glomar response" made famous by the CIA—that is, it can refuse to say whether or not the records exist. Chief Judge Janet DiFiore, in a majority opinion joined by three of her colleagues, accepted the NYPD's argument that disclosing whether or not such records exist would compromise its counterterrorism operations. FOIL, DiFiore writes, "was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature."

Media outlets, press freedom organizations, and civil liberties groups say the ruling is a another example of federal secrecy doctrine trickling down to state and local agencies. "This ruling opens the door to the NYPD and other police agencies vastly expanding the secrecy that already conceals too much of what they do," Chris Dunn, associate legal director at the New York Civil Liberties Union, said in a statement to Reason. "But the ruling also makes clear that this should be a narrow exception, and we intend to fight to make sure it remains a narrow exception."

The case started in 2012, when Samir Hashmi and Talib Abdur-Rashid—a Pakistani business student and an imam at a Harlem mosque, respectively—filed FOIL requests seeking any NYPD surveillance records on themselves. A 2011 Associated Press investigation had revealed that the NYPD's Demographics Unit, with help from the CIA, was using undercover officers and paid informants to extensively surveil Muslim communities, not just in New York City but also in New Jersey and other places far outside its jurisdiction. Hashmi and Abdur-Rashid strongly suspected they had been surveilled.

Hashmi had been involved in the Muslim Student Association at Rutgers University, one of several Muslim student groups the NYPD had monitored, while Abdur-Rashid was a politically active black Muslim. Among the documents obtained by the A.P. was an NYPD Demographics Unit list of "ancestries of interest," which included "American Black Muslim."

After stonewalling their requests for more than a year, the NYPD finally issued a response saying it would neither confirm or deny that such records existed. The Glomar doctrine—named after a 1975 Freedom of Information Act (FOIA) lawsuit seeking records about the Glomar Explorer, a salvage ship the CIA used in an attempt to recover a sunken Soviet submarine—is well-established at the federal level, but it is virtually nonexistent at the state level. As far as public records experts could tell, the NYPD's response was the first time any state or local agency in the country had tried to invoke Glomar powers. New York's open government statutes don't grant any such escape hatch for public agencies, and Hashmi and Abdur-Rashid's case was the first time New York courts had considered the question.

Although the majority of the appeals court sided with the police department, Judge Leslie Stein noted in a dissenting opinion that the court had not even reviewed the records at issue to determine if the NYPD was frivolously using terrorism as an excuse to deny Hashmi and Abdur-Rashid's requests. "Rather, the majority accepts, without any scrutiny, the NYPD's claim that the scope of the relevant 'investigation' is 'terrorism', and that revelation of any investigation—apparently of any person for any reason—could impede its counterterrorism efforts," Stein writes. "Viewed in this light, it follows that the NYPD could claim the right to refuse to confirm or deny the existence of any record that even tangentially relates to any past, present, or future investigation of 'crime,' thereby avoiding its FOIL obligations in innumerable cases."

For Hashmi and Abdur Rashid, their case was less about abstract transparency concerns than about their own dignity as American citizens. "I wanted to see exactly what [the NYPD] had, what they were alleging and investigating," Abdur-Rashid told me in 2016. "We live in America, man. And dissent against social injustice is not a crime or a justification for being investigated."

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36 responses to “Police Can Refuse to Say Whether Records Exist, New York's Highest Court Rules

  1. Curses! Foiled again!

    1. Note to self: Refresh before posting.

      1. Note to self: freshen up before shitposting.

        1. Note to self: shit up the fresh posting.

  2. Well, at least Hashmi and Abdur-Rashid can safely assume they’re being surveiled NOW.

    1. Then again, so can Citizen X, Don’t Look at Me, Rich, FoE, Leo, Diane Reynolds, Curt, etc…

      1. Once again I escape the cut. I theorize that they don’t want to know what I’m up to.

        1. An FIB agent once tried to surveil BUCS. He ended up in a mental institution where he spends his time making little wedding dresses for the roaches that find their way into his room.

          1. An FIB agent…

            That might be one of the better “John-sims” I’ve seen in a while.

            They really should rename the FBI the “Federal Investigatory Bureau” so that they can use FIB as the actual acronym.

            1. MeThinks that ye are FIBbing!!!

              The TRUTH is as is listed below…
              Scienfoology Song? GAWD = Government Almighty’s Wrath Delivers

              Government loves me, This I know,
              For the Government tells me so,
              Little ones to GAWD belong,
              We are weak, but GAWD is strong!
              Yes, Guv-Mint loves me!
              Yes, Guv-Mint loves me!
              Yes, Guv-Mint loves me!
              My Nannies tell me so!

              GAWD does love me, yes indeed,
              Keeps me safe, and gives me feed,
              Shelters me from bad drugs and weed,
              And gives me all that I might need!
              Yes, Guv-Mint loves me!
              Yes, Guv-Mint loves me!
              Yes, Guv-Mint loves me!
              My Nannies tell me so!

              DEA, CIA, KGB,
              Our protectors, they will be,
              FBI, TSA, and FDA,
              With us, astride us, in every way!
              Yes, Guv-Mint loves me!
              Yes, Guv-Mint loves me!
              Yes, Guv-Mint loves me!
              My Nannies tell me so!

  3. FOIL, DiFiore writes, “was never designed to compel a law enforcement agency to disclose inherently confidential, investigatory information of this nature.”

    It was designed to shut transparency and press freedom groups up, and it’s not even doing that very well.

  4. it follows that the NYPD could claim the right to refuse to confirm or deny the existence of any record that even tangentially relates to any past, present, or future investigation of ‘crime,’ thereby avoiding its FOIL obligations in innumerable cases.”

    “Curses, FOILed again!”

    Seriously, one supposes this will be decided by SCOTUS.

  5. Think about how much freedom we’ve lost since 9/11 in the name of anti-terrorism. Remind me which side is winning the war on terror again?

    1. America, fuck yeah! Is not the permanent state of emergency goddamn exhilarating?

      1. God, I love crying wolf!!!!! I see one!!! They’re everywhere!!

        1. The start of our eminent demise was 9/11. I’d say the beginning of the end was during the Clinton years around the time of the OJ trial and other ridiculous shit.

          The end of the beginning was 9/11. Now we are just waiting to implode.

          Now we are in the “bask in our former glory ” days like great Britain has been in for the last 100 years.

          1. If that’s true, then what is interesting is that no other nation has stepped up to take the mantle again.

            I still kind of am betting on India to become one of the great superpowers, if they aren’t already. I think China will either crash or stagnate soon. Similar to how Japan was going to kill us all in the 80s, but has since had 30 years of their Lost Decade.

            1. Once upon a time I thought Brazil might step up, but don’t hold your breath.

            2. The U.N. is attempting to ‘step up’ on the backs of all it’s member states, while the current real powers of the world all enjoy a lucrative oligarchy. (U.S., Russia, China)

          2. I’d say the beginning of the end was during the Clinton years around the time of the OJ trial and other ridiculous shit.

            I’d say it was about the time a sitting president, during testimony in open court about whether he did or didn’t sexually harass Paula Jones and whose blue dress he did or didn’t cum on, asked what’s the meaning of the word is.

            Although I suppose that could be covered under “other ridiculous shit.”

        2. Crying Wolf was my Indian name on the rez.

  6. I thought we were concentrating on taking guns away from Muslims.

  7. “a decision that transparency and press freedom groups called a blow to open government.”

    This is what happens in banana republics.

    Time to stop bitching about our broken corrupt government and start offering strategies to work around the blob.

  8. If there’s ever any doubt, there is no doubt. They’re being surveilled.

  9. All of the costs attendant to compliance with the 9 / 11 state are helping to bankrupt America. The costs of which I write include the costs government has undertaken to assuage the feelz of the cucks when they board an airplane and the costs government has imposed upon us cause “terrahism.”

    The Pentagon pimps on this board who whine that the trillion dollars plus spent each year on soldier boys, their guns, their grub, their mental health welfare, maintaining all of the Empire’s military installations all over the world, the new war making gadgets, guns, and gew-gaws, is not bankrupting us are just Tony level stupid. They seem to think that the entirety of the outlays are limited to that which is published in the spending bills and available for public consumption. Its as if they are ignorant of the concept of “off-budget” and black hole / secret expenditures. One must be awfully dopey and goofy and several fries short of a happy meal to believe that shit.

    The Pentagon pimps somehow think that all of the expenditures on the IRS, FBI, DEA, CIA, NSA, et al are somehow divorced from warfare spending. The IRS has gun toting “employees” who have powers of arrest and who engage in espionage. The FBI, CIA, and DEA all are players in the war on drugs.

    Part of being a free minds and free market type of guy is having nothing but disdain for defenders of the garrison state and the losers who can’t hack being in the private sector their entire adult life.

    1. Not to be a downer but everything you mentioned pales in comparison to what we spend on SS and Medica[re|id].

      1. Does it?

        Citing government charts and data is not going to convince a skeptic like me nor should the same hold any weight for a libertarian. What is being counted? Are we including all of the “off-budget” items with Empire maintenance, espionage, the surveillance state, the war on drugs, the IRS, CIA, FBI et al?

        However, for purposes of this discussion, assume that the purely social welfare expenditures, SS, Medicare, and Medicaid, are much higher than the above. Does that mean that we should not excoriate the rationales offered to justify Empire / Pentagon / Surveillance state / war-making (drugs, porn, competing currencies, tax, etc.)? Does that mean we should not excoriate those who rationalize that such spending is far surpassed by purely social welfare spending?

        Of course, sign me up for terminating SS, Medicare, and Medicaid, today!

        1. It does. This is known, so you saying it isn’t true is pretty much a case of willful ignorance on your part.

          1. Do you have hard-core, irrefutable proof of the same? By definition, citation to a government source does not carry the day.

            Nevertheless, it is willful ignorance to argue that the costs of maintaining Empire, including all of the Empire’s military and espionage and security and war-making expenses, contribute mightily to our indebtedness.

            1. Do you have a non-governmental source for the amount spent by the US Military?

              1. Well, I read a number of people with a better idea of the facts and with perspective.

                Are you familiar with John Whitehead, author of Battlefield America: The War on the American People?

                Whitehead would regard many here as hopelessly duped – the none as blind as those that will not see. For instance, he writes, “the federal government obscures so much about its defense spending that accurate figures are difficult to procure.”

                He also makes the point that I have been making: the real cost of warfare necessarily must include all of the money allocated to the IRS, FBI, CIA, TSA, DEA, Homeland Security, ATF et al.

                Another thing: at least with SS and Medicare, the peeps receiving it did pay into the programs.

  10. Yeah, I just searched for the regulations regarding the confidentiality of files held by the New York State Child Protective Services, and I think they say that someone named in a report can get a copy of the report. Child protective procedures tend to be very confidential. If an accused person can get his file from that department, then refusing accused terrorists access to their files is a new step for state level criminal justice proceedings.

    1. I think they say that someone named in a report can get a copy of the report.

      Do you think that copy will not be heavily redacted?


  11. “This ruling opens the door to the NYPD and other police agencies vastly expanding the secrecy that already conceals too much of what they do,” Chris Dunn, associate legal director at the New York Civil Liberties Union, said in a statement to Reason. “But the ruling also makes clear that this should be a narrow exception, and we intend to fight to make sure it remains a narrow exception.”

    Sorry, bro, but ‘narrow exceptions’ are oxymoron’s when it comes to government. Especially New York City government.

    1. Just like government “facts” the failure to accept the accuracy of which you regard as willful ignorance?

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