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NYCLU Brief: NYPD Use of Secrecy Loophole to Hide Surveillance of Muslims and Protesters Raises Alarms

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The NYPD’s use of a secrecy loophole to refuse to respond to public information requests raises serious alarms, the NYCLU argued in an amicus brief submitted to the Court of Appeals yesterday. The brief was submitted in the case, Abdur-Rashid v. NYPD, filed after the NYPD refused to respond to Muslim community members seeking records relating to the department’s widespread surveillance of their community. This is the first time that the highest court of New York is considering whether or not this secrecy loophole – the so-called “Glomar” response — is permitted under the state’s Freedom of Information Law.

“Given the NYPD’s history of unwarranted surveillance of people for their political activities and religious beliefs, the consequences for New Yorkers of allowing the NYPD to operate in even greater secrecy are extremely high,” said Chris Dunn, associate legal director of the New York Civil Liberties Union. “If the NYPD proceeds to hide behind the Glomar response, it could eviscerate our Freedom of Information law — a fundamental tool the NYCLU uses to defend New Yorkers’ civil rights.”

The Glomar response – coined after the CIA’s operations in the Cold War era — is the terse “neither confirm nor deny” response that has historically been used in highly unusual national security circumstances involving requests to federal agencies under federal law, not requests to local law enforcement under state law.

Nonetheless, when Samir Hashmi and Imam Talib W. Abdur-Rashid filed a request under New York law in 2012 to find out if they had been caught up in the NYPD’s suspicionless surveillance of the Muslim community, the NYPD invoked the Glomar response, claiming it could neither confirm nor deny the existence of records about any individual or group, from any time period, no matter what the context.

The NYPD’s use of the Glomar response is a dramatic shift that, if permitted, could enable the department to cloak itself in secrecy without limit. In its brief, the NYCLU provides its own recent lawsuit as a prime example of the danger. Despite having never invoked Glomar once in response to the NYCLU’s countless FOIL requests over the years, the NYPD this year used the loophole to refuse to respond when asked for records relating to interfering with the cell phones of protesters – a matter that would clearly be of great public and legal concern. As a result, last week the NYCLU filed a lawsuit on behalf of several activists and the group Millions March NYC challenging the NYPD’s refusal to respond to those requests.

The NYPD already has more than adequate methods that it uses to deny information requests from the public that it believes could impact law enforcement. Allowing it to freely hide behind Glomar’s boilerplate language, the NYCLU contends, would effectively eviscerate the state’s Freedom of Information Law — often a critical means for New Yorkers to hold their government accountable. In particular, the Freedom of Information Law has played a critical role over the years in enabling the NYCLU to fight for the civil rights and liberties of New Yorkers. 

Other NYCLU staff who contributed to this brief include Mariko Hirose, Bobby Hodgson and Maria Rafael. 

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