Index No.

10155912013 IAS Part 33 unter J

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
TALIB W. ABDUR-RASHID,
Petitioner
-against-
NEW YORK CITY POLICE DEPARTMENT, ANd
RAYMOND KELLY, in his official capacity as
Commissioner of the New York City Police Department,
Respondents,
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules
RESPONDENTS' MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
ZACHARY W. CARTER
Corporalion Counsel of the City of New York
A t t o r ney
r
Re s po ndent s
100 Church Street, Room 2-121
New York, N.Y. 10007
Of Counsel, Jrffrey S. Dantowitz
Tel: (2I2) 356-0876
SUPREME COURT OF THE STATE OF NEV/ YORK
::^:t:::Yl: .............x
TALIB W. ABDUR-RASHID.
Petitioners, Index No, l0l 559/2013
IAS Part 33
(Hunter, J.)
-agarnst-
NEW YORK CITY POLICE DEPARTMENT, ANd
RAYMOND KELLY, in his official capacity as
Commissioner of the New York City Police l)epartment,
Respondents
For a Judgment Pursuant to Article 78 of the Civil Practice
Law and Rules
RESPONDENTS' MEMORANDUM OF LAW
IN SUPPOR ION TO DISMISS
Preliminary Statement
This memorandum of law is submitted on behalf of Respondents New York City
Police Department ("NYPD") and former NYPD Commissioner Raymond Kelly, in support of
their motion to dismiss this Article 78 proceeding seeking to compel Respondents to produce
documents requested under the New York Freedom of Information Law ("FOIL").
This proceedingl presents an issue of hrst impression in New York -- namely,
whether a law enforcement agency responding to a FOIL request may refuse to confirm or deny
the existence of responsive records if such confirmation or denial would in and of itself be
exempt. While the ability of an agency to neither confirm nor deny the existence of records is
firmly embedded as part of federal
jurisprudence in connection with requests made of federal
'
A co-panion case,
llashmi
v. New York City Police Department, Index No, 101560113,
commenced at the same time as the instant proceeding, presents the identical issues raised here
agencies under the Freedom of Information Act ("FOIA," 5 U.S,C.
$
552), pursuant to the
"Glomar doctrine" discussed below, its application has yet to be decided in connection with the
New York State Freedom of Information Law.
Here, Petitioner seeks disclosure from NYPD of documents relating to the
alleged counter-terrorism investigation or surveillance of him and the named organizations with
which he is affrliated. Responding to such a request, however, even by asserting various
exemptions permitted under FOIL, necessarily would require NYPD to divulge whether, in fact,
any such documents exist and, in doing so, would reveal to Petitioner whether he or that
organization is or was a subject of investigation. Such knowledge should be protected, as
disclosure would allow lawbreakers (or potential lawbreakers) who learn they are the subject of
an investigation to modify their behavior so as to evade detection and capture, Similarly, it
would allow lawbreakers (or potential lawbreakers) to continue their activities unabated, or
would allow them more easily to be recruited by those with nefarious intentions, Additionally,
such disclosure also would undermine the NYPD's ability to protect the safety and security of
individuals in New York and elsewhere.
As discussed more fully below and in the accompanying affidavit of Chief
Thomas Galati, sworn to February 11,2014 ("Galati Aff."), the disclosure requested here, as to
whether or not Petitioner and the entities with which he is affiliated are or were the subject of
investigative interest, is itself exempt under FOIL, as such disclosure would interfere with
criminal investigations, would reveal non-routine investigative techniques and could endanger
the lives and safety of numerous people. Thus, Respondents ought to be permitted to withhold
information pertaining to the subjects of its counter-terrorism investigations,
Respondents respectfully submit that the instant proceeding provides the Court
with ample basis to adopt the Glomar doctrine in connection with requests made under FOIL.
2
The Glomar doctrine is entirely consistent with FOII,. Indeed, FOIL is modeled after the federal
statute, and the very same principles ae at issue, whether the record request is made to a federal
agency conducting preventative investigations or to a State or City agency. Thus, there is no
logical or practical reason to draw any distinction here, nor is there any reason to limit
application of the Glomar doctrine to the federal statute.
Accordingly, Respondents respectfully request that the Court recognize
Respondent's legitimate law enforcement need to withhold a substantive response to Petitioner's
FOIL request, by allowing them to neither confirm nor deny the existence of responsive records.
FACTS
Background
As part of its law enforcement duties, NYPD conducts intelligence-gathering
activities to investigate past unlawful conduct, to apprehend suspects, and to prevent such
conduct from occurring in the future.
Since the terrorist attacks of September 11,2001, residents of the United States,
and of New York City in particular, have been subject to continued terrorist threats and a
heightened risk of terrorist activities, which the NYPD investigates and seeks to detect and
prevent, In this regard, NYPD devotes significant effort to the investigation and apprehension of
individuals who engage in terrorist activities in the City, the deterrence of future terrorist
activities, the elimination of terrorist threats and the prevention of future terrorist attacks.
As described more fully in the aciompanying affidavit of Chief Thomas Galati,
this work is conducted through the NYPD's Intelligence Bureau and its various sections,
component units and programs through the development of leads, field work, source recruitment,
intelligence analysis and production and the sharing of information with partner agencies on the
local, state and federal levels. Galati Aff. at
lJI
11, 13. The types of investigative activities
which NYPD is authorized to conduct in furtherance of its goal of detecting or preventing
terrorist activities include (i) the use of information systems to identify and locate potential
terrorists and supporters of terrorist activity, assess and respond to terrorist risks and threats, or
otherwise detect, prosecute, or prevent terrorist activities, (ii) visiting public places and attending
events that are open to the public, (iii) conducting general topical research, (iv) use of online
resources, to conduct online searches and access online sites and forums, and (iv) preparing
general reports and assessments concerning terrorism or other unlawful activities for purposes of
strategic or operational planning. Id. at
fl
12,
NYPD's efforts rely not only on the investigation of current activities, but on
intelligence from activities and events that have occurred in the past. The Intelligence Bureau's
investigations of anticipated unlawful activity are designed to be preemptive -- that is, to detect,
deter, thwart, and prevent criminal activity, often designed to be of large-scale terrorist
operations and activity -- from occurring in the first instance. Galati Aff. at
fl
14. Moreover,
such investigations may be discontinued without an arrest or prosecution for a variety of reasons,
while the subject of the investigation continues to be of investigative interest. Id. atfl46.
NYPD's efforts have resulted in the apprehension of criminals and in the
prevention of terrorist plots that could have resulted in the loss of innumerable lives and cost
millions of dollars of property damage. Galati Aff. at
TT
16, 17. Disclosure of the details of the
NYPD's intelligence and anti-terrorist related investigations would significantly impair the
NYPD's ability to protect the public from further terrorist threats, and could result in the loss of
many lives and the infliction of widespread damage, Simply put, disclosure of the details of
NYPD's operations abets terrorists and signihcantly increases the likelihood of a successful
future attack. As discussed below and in the Galati Affidavit, this includes disclosure of whether
a particular individual or entity is or has been the subject of an investigation.
4
The Instant Proceeding
By letter dated October 23,2012 addressed to NYPD's FOIL Unit (the "FOIL
Request"), Petitioner sought from NYPD the following records:
(a) All records related to any investigation of Talib W. Abdur-Rashid, between
2006-2012, including the results of those investigations.
(b) All records related to Talib W. Abdur-Rashid relied upon by the NYPD that
led to any report being filed.
(c) All records related to the surveillance of Imam Talib W. Abdur-Rashid by
NYPD.
(d) All records related and relied upon on
[sic]
the surveillance of Imam Talib W.
Abdur-Rashid used by the NYPD.
(e) All directives andlor memoranda sent or received by the NYPD related to
surveillance of Imam Talib W. Abdur-Rashid from 2006-2012.
( All records related to any investigation of Talib W, Abdur-Rashid in relation to
his activities within the African American Community, between 2006-2012,
including the results of those investigations,
(g) All records related to any investigation of Imam Talib W. Abdur-Rashid in
relation to his civil rights activities, between 2006-2012, including the results of
those investigations.
(h) All records related to any investigation of Talib'W. Abdur-Rashid in relation
to his activities as Amir of The Harlem Shura, between 2006-2012, including the
results of those investigations.
(i) All records related to any investigation of Talib W. Abdur-Rashid in relation to
his activities as Imam of the Mosque of Islamic Brotherhood (130 West I 13th
Street, New York, NY 10026), between 2006-2012, including the results of those
investigations.
(i) All records related to any investigation of the Mosque of Islamic Brotherhood
(130 West ll3th Street, New York, NY 10026), between 2006-2012, including
the results of those investigations.
(k) All records related to the Mosque of Islamic Brotherhood (130 West I l3th
Street, New York, NY 10026), relied upon by the NYPD that led to any report
being filed.
(1) All records related to the surveillance of the Mosque of Islamic Brotherhood
(130 West I l3th Street, New York, NY 10026), by the NYPD,
5
(m) All records related and relied upon on
[sic]
the surveillance of the Mosque of
Islamic Brotherhood (130 West l l3th Street, New York, NY 10026), used by the
NYPD.
(n) All records related to any investigation of the activities of the Mosque of
Islamic Brotherhood (130 V/est I l3th Street, New York, NY 10026), between
2006-2012, including the results of those investigations,
(o) All directives and/or memoranda sent or received by the NYPD related to
surveillance of the Mosque of Islamic Brotherhood (130 West I l3th Street, New
York, NY 10026), from 2006-2012.
See Verified Petition at
I
l9 and Exhibit A annexed thereto.
By letter dated November 13,2012, NYPI) timely acknowledged receipt of the
FOIL Request which it received on November 5, 2012, and, inter alia, stated that it anticipated
being able to respond to the FOII- Request within twenty days. See Verified Petition atl2l and
Exhibit B annexed thereto. By letters dated December 12,2012 and February 13,2013, NYPD
advised Petitioner that it require additional time to respond to the FOIL Request. See Exhibits C
and D annexed to the Verified Petition.
By letter dated June 28, 2013, NYPD responded to the FOIL Request, denying the
Request. In so doing, NYPD did not acknowledge the existence or non-existence of any
responsive documents, as to do so would necessarily reveal whether Petitioner and/or the entities
with which he is affiliated are or were the subject an investigation or surveillance. Instead,
NYPD explained that such documents "if possessed by the NYPD," would be exempt pursuant
to the reasons set forth. See Exhibit E to the Verified Petition, at L
Petitioner appealed NYPD's denial of their FOII- request by letter dated July 19,
2073, disputing each of the grounds on which he denial was based, See Verified Petition atl23
and Exhibit F annexed thereto. NYPD denied the appeal by letter dated August7,2013. Id. at
Exhibit G. Again, rather than revealing whether any responsive documents existed, the Records
Access Appeal Officer explained that "in the event that there exist investigatory records that
6
pertain to" Petitioner and the entities set forth in the FOIL Request, any such records would be
exempt pursuant to applicable exemptions. Id. at 3 (emphasis added)
Petitioner commenced this proceeding on or about November 26,2013. Notably,
on at the same time, Samir Hashmi commenced a virtually identical proceeding, Hashmi v.
NYPD et al 115560/13, in which petitioner there -- represented by the same attorney as
Petitioner here -- sought NYPD records of any investigation or surveillance of him and the group
to which he belonged.2
As discussed more fully below, NYPD should not be compelled to confirm or
deny the existence of any responsive documents, as to do so would reveal to Petitioner whether
he (or the Harlem Shura or Mosque of Islamic Brotherhood) is or has been the subject of an
investigation, and disclosure of such knowledge will cause substantial harm to the integrity and
efficacy of NYPD's investigations of terrorist activities and could endanger the safety of those
working undercover, or who otherwise provide information to the NYPD. Indeed, as discussed in
the Galati Affidavit, there currently is a "mass campaign" underway by which individuals are
urged to submit FOIL requests to NYPD to ascertain whether they (and the groups to which they
belong or with which they are affiliated) are or were the subject of investigation. Galati Aff. at
fl
42. Obviously, the disclosure of such information cannot be taken in isolation. As terrorist
groups are vigilantly attentive to the documents and information released by NYPD, the
cumulative disclosure of such strands of information would provide such groups with the
unprecedented insight into NYPD's operations and methodologies, and could endanger the safety
of those who might be discovered to be cooperating with NYPD. Thus, disclosure of such
2
Although these proceedings were commenced at the same time and by the same attorney, raise
identical issues and bear consecutive index numbers, neither Petitioner listed the other as a
"related case" on the Request for Judicial Intervention.
7
information would itself interfere with law enforcement investigations, would reveal non-routine
criminal investigative techniques or procedures and could endanger the safety of undercover
police offrcers and other confidential sources of investigative information.
ARGUMENT
POINT I
NYPD SHOULD NOT BE REQUIRED TO DISCLOSE
WHETHER RESPONSIVE DOCUMENTS EXIST, AS
TO DO SO WILL REVEAL INFORMATION THAT
WOULD INTERFERE WITH A LAW
ENFORCEMENT INVESTIGATION
In this proceeding and its companion proceeding, Hashmi v. NYPD,
10156012013, Respondent respectfully requests that the Court recognize and adopt the "Glomar
doctrine" which permits federal agencies to neither confirm nor deny the existence of records
requested under the federal Freedom of Information Act, Respondents respectfully submit that
this result is entirely appropriate and warranted given the similarity of the relevant provisions of
FOIA and FOI[,, and the similarity of interests to be protected by the Glomar doctrine.
A. FOIL Is Patterned After FOIA
The New York Court of Appeals has expressly recognized that the legislative
history of FOIL shows that many of New York's FOIL's provisions -- including, significantly,
the law enforcement exemption found at Public Officers Law
$
87(2XeXi) -- were "patterned"
after FOIA and that, accordingly, federal case law on the scope of the exemption is "instructive."
Lesher v, Hltnes, l9 N,Y.3 d 57. 64-65 (2012)(explzrining
legislative hislory of FOIA's law
enlbroement exemption rnd adopting analysis in similar I'OIL exemption): Iink v. l,efkowitz, 47
N.Y.2d 567,572 (1979); Matter of'l-uck-11-Au,ay Assoc,. L.P. v, Inpire State Dev. Corrr.. 54
A.D,:icl 154, I
(t2
(1't Dep't 2008); Matter of Sea Crest Constr. Corp. v, Stubing, S2 A.D.zd 546,
548-49 (2d Dep't 1981.
8
Indeed, courts in New York State -- including the Court of Appeals and Appellate
Division courts -- have readily turned to federal case law concerning FOIA in guiding their
decisions concerning similar provisions in FOI[,. See. e,9,, Encore College Bookstores. Inc. v.
Auxilinrv Servi ceCornration of the State
I Inirercifv nf Nerv Ynrk at F'a incrlole
87 N.Y.2d
410 (1995)(reviewing the legislative history of the "substantial competitive injury" exemption
found in Pub. Off. Law
S87(2)(d),
and the analogous nature of equivalent exception in FOIA, to
determine scope of exemption); Pittari v. Pirro, 258 A.D,2d 202. 205-06 (2d Dep't
1999)(acloptirig analysis of federal case law under FOIA in holding that an agency could make a
generic determination that disclosure under FOIL would cause interference with pending
proceeding); Legal Aid Soc')'v. New York City Police Dep't,274 A.D.2d207,214-15 (lst
Dep't, lv, denied. 95 N,Y.2d 956 (2000)(sanre); Matter o1't-h'ban Jr-rstice Ctr. v New Yolk Police
Dept,, 2010 N,Y. Miso. LliXlS 4258.
x2l-22;2010
NY Slip Op 3240011 (Sup. Ct. N,Y. Co.
Sept. 10, 2011
)(relying
on IrOIA in cenying acoess to portions o1'' NYPD's manual relating to
investigation of prostitution, explaining that NYPI)'s 'oundercover techniques and procedures,
i.e.,Ilte situations in i.vhich'the very function tcl be perfbrrnecl presurmes secrecy as to the rnanner
of its perf'crrmance,"' al'e akin to the mcchanics of an Ir.B,l. "stakeout" arrallgement which is
properly exclu<lecJ r-nder ltrOlA)(citing Cox v. [J.S. Dc'p'l o1'.lustice.576 F.2d 1302 (8th Cir.
1978) ancl Hawkes v, Internal Revenue Service
,
467 F.2d 787, 795
16th
Cir, 1972)); Matter of
Pride Tnll Reallv LT C v lrnir:lq
4 Misc.3d 100-s(A);791 N.Y.S.2d 873:2004 NY Slip Op
50665(U),
*2-5;2004
N.Y. Mjsc. L[lXIS 995 (Sup. C]t. N.Y. Co, April 28,2004)(noting that
cases decidecl uncler IOIA are instrurctive, and citing fcleral cases interpreting similar provision
to determine if l';OIL's larry exemption privilege applies to civil law enforcenrent proceedings)
9
B. The Glomar Doctrine
Under the well-developed federal case law, an agency responding to a FOIA
request may choose to neither conf,rrm nor deny the existence of documents under the
appropriate circumstances. The so-called "Glomar" doctrine may properly be invoked where a
record confirming the existence of responsive records would itself be exempt under another
FOIA exemption. See Phillippi v. CIA,546F.2d 1009 (D,C. Cir. 1976)(case from which the
"Glomar doctrine" gains its title)3. As the Second Circuit has explained:
To properly employ the Glga_r response to a FOIA request, an
agency must "tether" its refusal to respond, Wilner, 2008 U.S. Dist.
LEXIS 48750, at
t
8 (S.D.N.Y June 25,2008), to one of the nine
FOIA exemptions -- in other words, "a government agency may . .
, refuse to confirm or deny the existence of certain records . , . if
the FOIA exemption would itself preclude the acknowledgment of
such documenti." Minier lv. CIAI, 88 F.3d 796, 800
19'h
Cir.
I 996)(emphasis added),
Wilner v. NSA,592lt.3c160, 68 (2d Cir.2009). See Gardels v. CIA,689 F.2d 1100, 1103 (D.C.
Cir. 1982)(Glomar response is appropriate when "to confirm or deny the existence of records
would cause harm cognizable under FOIA exemption."); ACI-U v. DOD,389 F. Supp,2d547,
558-66 (S,D.N.Y, 2005) (discussing the Glomar standard).
As the Second Circuit has observed, "[t]he Glomar doctrine is well settled as a
proper response to a FOIA request because it is the only way in which an agency may assert that
a particular FOIA statutory exemption covers the 'existence or nonexistence of the requested
records' in a case in which a plaintiff seeks such records." Wilner, 592 F.3d at 68 (quoting
Phillippi, 546 F.2d at 1012).
3
The origins of the Glomar response trace back to the D.C. Circuit Court's decision in Phillippi
v, CIA, 546F.2d 1009 (D.C. Cir. 1976),which affirmed CIA's use of the "neither confirm nor
deny" response to a FOIA request for records concerning CIA's reported contacts with the media
regarding Howard Hughes' ship, the "Hughes Glomar lSxplorer."
l0
Under the Glomar doctrine, an agency resisting disclosure of requested records
"has the burden of proving the applicability of an exemption," which it may meet "by submitting
a detailed affidavit showing that the information logically falls within the claimed exemptions."
Wilner, 592 F.3d at 68. See Minier, 88 F.3d at 800 (internal quotation marks and citation
omitted). In fact, "when the Agency's position is that it can neither confirm nor deny the
existence of the requested records, there are no relevant documents for the court to examine other
than the affidavits which explain the Agency's refusal," Wolf v. CIA,473 F.3d 370,374 n.4
(D.C, Cir. 2O07)(internal quotation marks omitted). The agency's afflidavit should "explain
[]
in
as much detail as possible the basis for
fthe
agency's] claim that it can be required neither to
confirm norto deny the existence of the requested records." Phillippi, 546F.2d at 1013.
In evaluating an agency's Clonlar response, a court must accord "substantial
weight" to the agency's affidavits, "provided
fthat]
the
justifications
for nondisclosure are not
controverted by contrary evidence in the record or by evidence of . . . bad faith," Wilner, 592
F,3d at 68 (quoting Minier, 88 F.3d at 800). See
Tlrrr
is v. l-lnited S
tafr-c I)onrt nf I Inrnolqnrl Qa^
2013 t.l.S. Dist, t-tiXlS 91386, at
*31i
(E.D.N.Y.
Jut-tc27.2013)
C. The Glomar Doctrine Should be Adonted and Annlied Here
As explained above, the Glomar doctrine is properly invoked only where
disclosure of the existence or non-existence of a responsive document would itself vitiate an
available exemption. F-ederal law enforcement agencies often, but not exclusively, invoke the
Glomar doctrine in connection with FOIA Exemptions 1 (when requested information is
classified) or 3 (when requested information is protected from disclosure by some other statute).
Where, as here, a City agency would seek to invoke the Glomar doctrine, the available
exemptions are some\/hat more limited than they would be for a federal agency, as municipal
agencies do not have authority to classify documents and so may not invoke a statute that makes
il
its documents conf,rdential. Accordingly, because classification of categories of information is
unavailable to NYPD, here NYPD must rely on other available exemptions found in FOIL, as
discussed below.
Here, the similarities between the Interference exemptions under FOIL and the
federal FOIA, and the substantial principles requiring confidentiality of certain investigations,
should easily allow this Court to adopt the Glomar doctrine, which is already a mainstream of
federal jurisprudence,
l. Public Officers [,aw
$
87(2)(e)(i)
-
Disclosure
Would Interfre With Law Enforcement Investigations
Pursuant to Public Offrcers I-aw
$
87(2)(e)(i), an agency may properly deny
access to records or portions thereof that are "compiled for law enforcement purposes and which,
if disclosed, would . . , interfere with law enforcement investigations . . . ."
With this exemption, the New York State legislature codifed what was
commonly referred to as the "law enforcement privilege." In Dep't of Investigation of the City
of New York, 856 F,2d 481,484-485 (2d Cir. 1988), the Second Circuit explained:
[T]he
law enforcement privilege
[]
has been recognized in the
absence of a statutory foundation, and
[]
is largely incorporated
into the various state and federal freedom of information acts. The
purpose of this privilege is to prevent disclosure of law
enforcement techniques and procedures, to preserve the
confidentiality of sources, to protect witness and law enforcement
personnel, to safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with an
investigation.
In Commonwealth of Puerto Rico v. United States of America, 490 F.3d 50 (l't
Cir.2007), the First Circuit interpreted the analogous law enforcement provision in the federal
Freedom of Information Act, upon which FOIL was modeled. The Court saw it appropriate to
extend the privilege previously recognized for "confidential government surveillance
information," and extended it to "law enforcement techniques and procedures." Commonwealth
l2
of Puerto Rico, 490 F .3d at 62 (citing Cintol 818 F,2d 980, 1002 (lst Cir. 1987)). The
Circuit Court held that the
justihcation in Cintolo applied similarly to the Federal Bureau of
Investigation ("FBI") information regarding techniques and protocols of investigations into FBI
employees' activities since their disclosure would
jeopardize future surveillance operations. Id
at 64. The Court reasoned that:
Other circuits have explicitly acknowledged a broader privilege for
law enforcement materials. The D.C, Circuit has explained that the
privilege for investigatory materials is "rooted in common sense as
well as common law," noting that "law enforcement operations
cannot be effective if conducted in full public view" and that the
public has an interest in "minimizing disclosure of documents that
would tend to reveal law enforcement investigative techniques or
sources. Black v, Sheraton Corp of Am., 184 U.S. App. D.C.46
(D,C. Cir. 1977).
Commonwealth of Puerto Rico.490 F.3d at62-63.
Courts have recognized that invocation of the Glomar doctrine may be especially
appropriate where information is requested regarding surveillance activities, as confirming or
denying the existence of particular records of surveillance would likely indicate that a certain
person, group or location was or was not subject to surveillance, thus permitting individuals to
evade detection. This common sense conclusion stems from the paramount need for secrecy of
surveillance in order to obtain useful intelligence information. See Arabian Shield Development
Co. v. CIA,1999 tI.S. Disr, LEXIS 2319. at
+9
(N.l).
'['ex.
Ieb.26, 1999) (holding CIA properly
refused to confirm or deny whether it "has collected intelligence regarding specific individuals or
corporations, or has an intelligence interest or a facility in a particular location."), af'd, 208 F.3d
1007. qqt_denj._d,5:il LJ.S, fJ72 (2000); Wilner, 592 F.3d at 75 (approving Glomar response
concerning request for documents that would reveal subjects of investigation); Gordon v. FBI,
388 F, Supp. 2d 1028, 1037 (NLD. Cal. 2005)("Rcquirin-e the government to reveal whether a
particular person is on the rvatch lists rvould cnable crirninal organizations to cilcnmvent the
t3
pllrpose of' the rv,rt"ch lists by determining in rdvurce which ol- their members may be
questioncd.") Earth Pledge Found v. CIA, 988 I'-. Supp. 623, 626 (S,D,N.Y, 1996) (upholding
Glomar response refusing to confirm or deny the existence of a CIA field station); affd 128
F.3d 788 (2d Cir. 1997); Daily Orange Corp. v. CIA, 532 F. Supp. 122, 124-26 (N.D.N.Y.
1982)(upholding Glomar response refusing to confirm or deny covert activities at a university).
Alth<ngh thc Glonrar doctrinc was not at issue. the Courl of Appeals fbr the
District ol'Colunrbia discussed at length thc need 1o nraintain seoreoy with respect to sclurces and
methods of intel li gencc inlormation:
As the Supreme Couft said in Sims
ICIA
v. Sims,47l U.S. 159
(1985] "[al foreign government can learn a great deal about the
Agency's activities by knowing the public sources of information
that interest the Agency." Sims, 471 U.S. at 176-77. This Court has
established that in considering the potential harm arising from
disclosure of a source or method, "'we must take into account . . .
that each individual piece of intelligence information, much like a
piece of
jigsaw puzzle, may aid in piecing together other bits of
information even when the individual piece is not of obvious
importance itself."' Gardels v. CIA, 689 F .2d I 100, I 106 (D.C. Cir.
1982)(quoting Flalperin v. CIA, 203 U.S, App. D,C. 110,629 F.2d
144, 150 (D.C. Cir, 1980)). As the Director of Central Intelligence
attested to the District Court:
Disclosure
[of
intelligence methodsl would directly
permit hostile governments to either neutralize
fthe
disclosed methods] or utilize them as a vehicle for
disinformation. Hostile intelligence services and
governments are not omnipotent; they cannot watch
all potential sources and guard against all possible
methods of collection. For example, the procedure
of monitoring international telecommunications is
one of the most simple intelligence collection
methods, but its superb utility stems from the sole
fact that hostile powers do not know which
communications are seized and which channels are
open to compromise. Therefore, protection of the
fact of CIA use of even the simplest methods in
certain situations keeps this Nation's adversaries
guessing as to the goals of United States
intelligence activities and the means of carrying
them out.
l4
Fitzsibbon v. clA. 9l I I',.2c 7-s-5. 763 (D.C. Cir 1990). Such conrnlon sense reasoning is
equally applicable wlien the NYPI) is asked to reveal inlonation that would confirm or deny
that a particr-rlar-incliviclLral or er-rtity is ol was the sub.ject ol'r telroristn-related investigation,
The legitimacy of this concern was expressly recognized by the Second Circuit in
the recent case involving the requested disclosure of the NYPD's documents relating to its
efforts to detect and prevent potential terrorist threats at the 2004 Republican National
Convention, fnding
even the redacted documents contain some information that could
disclose the identity of an NYPD undercover off,tcer. Pulling any
individual 'thread' of an undercover operation may unravel the
entire 'fabric' that could lead to identifying an undercover officer,
This could present a risk to the safety and effectiveness of that
officer and would likely provide additional information about how
the NYPD infiltrates organizations. thereby impeding future
investigations.
Dinler v. City of New York, 607 F.3d 923,944 (2d Cir. 2010), More recently, the Second
Circuit similarly upheld the CIA's ability to withhold documents relating to certain CIA
activities under FOIA's similar law enforcement exemption:
And even if the redacted information seems lnnocuous in the
context of what is already known by the public, "fmlinor details of
intelligence information may reveal more information than their
apparent insignificance suggests because, much like a piece of
jigsaw puzzle, each detail may aid in piecing together other bits of
information even when the individual piece is not of obvious
importance in itself." Wilner v, NSA,5L)2 F.3d 60, 73 (2d Cir.
2009) (alterations and internal quotation marks omitted); see also
CIA v. Sims,471 U,S. 159, 178 (1985); ACLU v. U.S. Dep't of
Defense, 628 F.3d 612, 625 (D.C.Cir. 2011). Again, it is both
logical and plausible that disclosure of the redacted information
would
jeopardize
the CIA's ability to conduct its intelligence
operations and work with foreign intelligence liaison partners,
ACLU v. Dep't of Justice,6tll F.3d 61 (2dCir.2012)
The operational integrity of NYPD's intelligence program is dependent on its
ability to keep confidential the methodologies used to train, deploy, manage and communicate
I5
with law enforcement personnel and to safeguard information regarding the program's
capabilities, size and scope, This information includes, but is not limited to
a. The persons, groups, or organizations about whom information is being or has
been obtained;
b. locations where information gathering personnel are or have been deployed, either
inside New York City or elsewhere;;
a, Information that would be revealing of tradecraft techniques, including but not
limited to, unique training to the Intelligence Bureau and how undercover officers
or informants travel or communicate;
b. Information describing how undercover ofhcers or informants establish their bona
fides; and
The Intelligence Bureau's resources and capabilities. c
Galati Aff. at jl22
The release of information that provide direct or indirect information concerning
sources and/or methodologies would severely compromise the intelligence capabilities of the
NYPD. Disclosure of such information, even if redacted, would allow an individual bent on
unlawful activity to prepare "a roadmap of investigatory operations, decisions, techniques and
information that would enable every group to anticipate investigative tactics and activities, and
undermine current and future investigations." Galati Aff. at
fl
24. lndeecl, as Clhief Galati notes:
The NYI'}D Intelligence Bureau is well-aware that individuals and
organizations that have considered criminal acts against New York
City, inoluding acts of terrorism, monitor the capabilities,
strategies, and operations tactics of the NYPD and its Intelligence
Bureau with the goal of developing counter-measures which will
allow for their criminal objectives to be achieved.
Organizalions and individuals that have considered operations
against New York City, including terrorist operations, carefully
watch what NYPI) does and what it says, and carefully consider
what any information disclosed by NYPD would communicate to
them regarding our capabilities, strategies and operational tactics,
l6
Id. at
flfl
19,20. These statements confirm the concern recognized by the United States Supreme
Court regarding the knowledge to be obtained by review of information disclosed by law
enforcement, and gives credence to the admonition that in assessing the potential harm arising
from disclosure of intelligence information, "'we must take into account . . . that each individual
piece of intelligence information, much like a piece of
jigsaw puzzle, may aid in piecing together
other bits of information even when the individual piece is not of obvious importance itself."'
Gardels, 689 F,2d at I106.
The fact that a particular investigation may have concluded also does not support
disclosure. In Lesher v. FI)inos. lq N.Y.3d 57^68 (2012). the Curt of'Appeals reoognized that
the interference exernptiou usually ccases to apply "after cnforcement investigations and any
ensuing
.judicial
procecdings have rur.r their' oourse," IJ<lwever, it also acknowledged that the
exemption might still applr in a criminal nratter wlrere the prosecution has been completed,
where "the prospecf that clisclosLu'e nright oompromise a relatecl case." Thus, the passage o1'time
would not vitiate the applicability of the exemption.
In Deluca v. New York City Police Department, 261 A,D.2d 140 (l't Dep't
1999), the Appellate Division permitted NYPD to withhold documents relating to a shooting,
finding that disclosure might interfere with an open investigation, In so doing, the Court noted
the interview of the comatose victim, should he ever regain consciousness, might provide
infonnation "that may provide r basis flr further investigation along lines of inquriry not
heretofore pursuecl." 261 A.D.zd at l4l,
'l'he
Court spccifcally fbr.rnd lault with the lower
court's assumption that such an intervielv "wcluld nclt give rise to such new inlilrrnation and
would be the end of the invc-stigation. thereby terminating any threat of "interference" with a law
enfrrcement irrvestigation." Id. See also Ofzv. United States Dep't of Health & Human Servs..
70 F.3d 729, 733 (2d Cir. 1995) (noting that the actual existence of a crime, the status of the
l7
investigation, and the passage of time are all irrelevant to the applicability of FOIA exemption
relating to disclosure of confidential sources).
NYPD's efforts rely not only on the investigation of current activities, but on
intelligence gathered from activities and events that have occurred in the past. Thus, there exists
the very real possibility that intelligence information gathered currently or in the past might
provicle NYPD with a basis for fulther investigation along aventtes not previously pursued. As
Commissioner Galati explains, NYPD's investigations of potential unlawful activity may be
discontinued without an arrest or prosecution for a variety of reasons, however the subject
continues to be a person of investigative interest, Galati Aff. at
nn
45-47 .
Thus, NYPD intelligence counter-terrorism investigations that are discontinued
without a prosecution should not be viewed as concluded and no longer confidential, as each
investigation and each piece of information learned during the course of that investigation may
be significant to other ongoing and future counter-terrorism investigations. The need for
confidentiality is no less and no different than if the investigation had not been discontinued,
Revealing NYPD's interest or non-interest in a subject could compromise the value of any
information gathered to date and
jeopardize NYPD's current investigative efforts. Thus,
disclosing whether a person or group is or was the subject of investigation would interfere with
those ongoing investigations, as it could compromise NYPD's efforts and render them
ineffective. As this Court has recognized, "Even thoLrgh countetterrorism and other intelligerroe
activities do not culminatc in prosecutions. these investigations, nonetheless, should be exen-rpt
as responclents' current ancl past investigations provicle the NYI'D with a 'basis f'or further
investigation along lines of incluiry not heretofore pursued."' Asian American Legal Defnse
l8
and Education Funcl v. NYPI)
,41
Misc. 3cl 471,477 (Sup. Ct. N,Y. Co..2013)(Hunter.
.I.)a(quoting Deluca, 689 N.Y.S,2d at 488).
Frorn the f'oregoing, it is cvident that Respondent's clesire to withhold information
that rvould cither confrm or deny the exstcnce oJ' responsivc recot'ds -- as would be the
inevitable result rvere it required to respond in any cllher manrler to Petiticlner's FOIL request --
would provide invaluable information about intelligence operations to potential lawbreakers that
would help them avoid detection, arrest and prosecution. As disclosure of such information
would interfere with law enforcement investigations, Respondents' assertion of this response is
entirely proper as it is clearly tethered to the exemption set forth in Public Officers Law
$
87(2)(eXi),
2. Public Officers Law
$
87(2)(e)(iv)
-
Disclosure Would Reveal
Non-Routine Criminal Investigative Techniques Or Procedures
Pursuant to Public Officers Law
$87(2)(e)(iv),
an agency may withhold access to
records which, if disclosed, "would reveal criminal investigative techniques or procedures,
except routine techniques and procedures." The leading case on this exemption is Matter of F'ink
v. Lefkowitz,47 N.Y.2d 561 (1979). which involved a request for access to amanual prepared
by a special prosecutor that investigated nursing homes. There, the Court of Appeals held that:
The purpose of this exemption is obvious. Effective law
enforcement demands that violators of the law not be apprised the
nonroutine procedures by which an agency obtains its information
(see Frankel v. Securities & Exch. Comm.,460 F-,2d 813,817,cert.
den., 409 tJ.S, 889). However benefrcial its thrust, the purpose of
the Freedom of Information Law is not to enable persons to use
agency records to frustrate pending or threatened investigations nor
to use that information to construct a defense to impede a
prosecution.
a
Although a Notice of Appeal was filed in this proceeding, the appeal has not yet been
perfected.
t9
47 N,Y.Zd at 572. See Y Stats Police. 187 A.D.2d 919
,920-21
(3d Dep't
1992) ("The purpose of the exemption provided by Public Officers Law
$
87(2XeXiv) is to
prevent violators of the law from being apprised of nonroutine procedures by which law
enforcement officials gather information,"). Thus, "The Freedom of Information Law was not
enacted to furnish the safecracker with the combination to the safe." Fink, 47 N.Y.2d at 573.
As the Court of Appeals explained, "lndicative, but not necessarily dispositive, of
whether investigative techniques are nonroutine is whether disclosure of those procedures would
give rise to a substantial likelihood that violators could evade detection by deliberately tailoring
their conduct in anticipation of avenues of inquiry to be pursued by
flaw
enforcement]
personnel." Fink, 47 N.Y.2d ar. 573 (citations omitted), Thus, "[e]ven though a particular
procedure may be 'time-tested', it may nevertheless be nonroutine." Spencer. 187 A.D2d at921
(citing Fink, 47 N.Y.2d a|572,573).
In applying these criteria, the Third f)epartment found that records relating to the
method by which the respondent police department gathered information about petitioner and his
accomplices was exempt, "because the disclosure of such information would enable future
violators of the law to tailor their conduct to avoid detection by law enforcement personnel."
Spencer, 187 A.D.2d aI92l.
ln Y N
('i
v. I- bcrtics ljnion r,. N.Y Police l)en'l- 2009 N.Y. Misc. [,HXIS
(l
2542 (Sup. Clt.. N,Y. Co. .Tulre 26,2009), petitioners sought disclosure of documents relating t<l
NYPD's Lower Manhattrn Sccurity Initiative ("l,MSI"), designed to prcvent and defend against
terrorist activity in lower Mrnhrttan. fhere. petitionet sought infbnnation "involvitrg the
operational details of the LMSI" snch rs the types of inf'ormation to be collected and how the
infbnnation will be usecl. shared and stored and for how long." NYPD largely denied the
request. arguing that
20
disclosure of such details about the development of the system and
how it works would limit its effectiveness and increase the risk of
terrorist acts in lower Manhattan. . . and that disclosure of this
information, as well as the disclosure of any assessments which
have been made about the LMSI or about a similar system used in
London, would provide terrorists with insight into how the system
works and how detection and surveillance by the LMSI may be
avoided.
2009 N.Y. Misc. I-EXIS 2542, at
*
l0-11. Finding the NYPD's argument persuasive, the Court
denied access to documents "which show or discuss the LMSI's operational details, such as the
types of information to be collected and how the information will be used, shared and stored and
for how long." Id, at
t
11-12.
Similarly, in Matter of Urban Justice Ctr. v New York Police Dept., 2010 N.Y.
Misc. LEXIS 4258,2010 NY Slip Op 324001J (Sup. Ct. N.Y, Co. Sept. l0,20ll), the Court
denied access to a portion of the NYPD's confidential Organized Crime Control Bureau manual
regarding techniques use in NYPI)'s undercover investigations of prostitution, In so doing, the
Court held that "undercover operations, even though widely used and time-tested, ae
nevertheless non-routine. Indeed, detailed specialized methods of conducting an investigation
into the activities of a specialized area of criminal enforcement in which, as here, voluntary
compliance with the law has been less than exemplary, have been held "non-routine." Thus, the
Court held that disclosure would "raise a substantial likelihood that persons engaged in
prostitution-related activity would be alert to these techniques and would deliberately tailor their
conduct so as to avoid detection or prosecution, thus, seriously compromising NYPD's future
undercover investi gations. "
Among the records requested by Petitioner in the case at bar are documents
concerning any surveillance of him, the Harlem Shura or Mosque of Islamic Brotherhood.
Surveillance, however, is a non-routine investigative technique which is exempt from disclosure
pursuanttoPublicOfficersI-aw$87(2XeXiv)'SeeAr!.ap-
2t
Education lund,4l Misc.3d at 47tl ("t)nclcrcovet'opcratic)ns. even though iviclely used anc]
time-tcsted. have bccn adjudgccl non-r'ontinc"), As Chief Galati has described, were a particular
individual or group learn that they are or were the subject of investigation, they might alter their
conduct and "take counter-measurcs to avoid detection of illegal activity, or to otherwise guard
its conduct so as to shield it from detection, such as by altering their patterns of behavior,
locations of illicit conduct or methods of operation or identity of criminal associates." Galati
Aff. at
fl
25. See id. aI
fl
7. Additionally, such information would provide "a roadmap of
investigatory operations, decisions, techniques and information that would enable every group"
to undermine current and future investigations. Id. atjl24. Also, if they were to leamthatthey
were not the subject of disclosure, they might continue to more freely and intensely engage in
criminal activity, begin to engage in criminal activity, or be more susceptible to being recruited
to engage in such activity. Id. aT,l26.
Indeed, this prooeeding should not be viewed in isolation. Indeed, a companion
case, Abdur-Rashid v, NYPD, 101559/13, was brought simultaneously with this one, in which
the petitioner there, too, sought documents regarding NYPD's alleged surveillance of him and
the entities with which he is affiliated. Moreover, the American Asian Legal Defense and
Education Fund has engaged in an active and ongoing "mass Freedom of information Law
campaign" encouraging citizens (mostly its constituency of Muslim Americans), to submit
similar FOIL requesls. Galati Aff. at
I
42, and Exhibits A an B annexed thereto. Were NYPD
required to confirm or deny the existence of responsive records in these cases -- thereby
necessarily divulging whether Petitioner and their organizalions are (or were) the subject of
investigations -- there would be no basis on which to deny other requestors the same information
about themselves or other organizations.
22
If NYPD were required to affirmatively or negatively respond to each FOIL
request seeking to determine the scope and targets of its surveillance operations, crucial
surveillance strategies could not remain confidential, and would thus lose all value, See. e,g.,
Bassiouni v. CIA,3g2F.3d244,246
(7th Cir, 2004). Indeed, as courts have recognized, any
information available to a FOIL or FOIA requester is similarly available to "North Korea's secret
police and Iran's counterintelligence service too." Id. These and "other hostile entities," id.,
including agents of al
Qaeda
and its affiliates, would no doubt be greatly interested in the
opportunity to have NYPD ofhcially and publicly confirm or deny whether a particular person or
entity is or was the subject of NYPD interest, investigation and/or surveillance. It is for this
reason that, according to the Seventh Circuit, "[e]very
ffederal]
appellate court to address the
issue has held that FOIA permits the
fintelligence
agencies] to make a 'Glomar response' when it
fears that inferences from . . . selective disclosure could reveal classified sources or methods of
obtaining foreign intelligence." Id. In certain circumstances involving surveillance, "the only
way to keep secrets is to maintain silence uniformly." Id, This is because providing assurances
that a particular person or area is not being targeted becomes unworkable and would effectively
disclose surveillance sources and methods to a trained eye as to the scope and any inherent
limitations of the NYPI)'s activities.
In short, if NYPD were required to confirm or deny the existence of responsive
records in this case and in response to similar requests, the impact on NYPD investigations and
its counter-terrorism operations -- where "the veri- function to be pcrformed presumes secrecy as
tcr the manner of its perfbnrance." Matter of Urban Justice Ctr.
,2010
N.Y. Misc. LEXIS 4258, at
*30
-- would be devastating. Indeecl. such clisclclsure rvould severely undermine NYPD's efforls
and diminish. il'not uttc:rly elirninate, the e f'licacy of'such investigations, thereby immeasurably
23
implovirig the prospect of'another suc,cessfl terrolist attack on the City. Thus, in deciding this
case, the Courl should bear in mind the admonition of the Court of Appeals, when it stated that
the purpose of the Freedom of Information Law is not to enable
persons to use agency records to fiustrate pending or threatened
investigations nor to use that information to construct a defense to
impede a prosecution.
Fink, 47 N,Y,2d aT 572. See Pittari, 258 A.D.2d at204,
As NYPD's objection to either confirming or denying the existence of responsive
records is firmly tethered to an applicable FOIL exemption, its assertion of a Glomar response
should be upheld.
3. Public Officers Law
$
87(2X0
-
Disclosure Could
Endanl'er ife and Safefv of Numerous Peonle the L
Under Public Officers l-aw
$
87(2)(, an agency may deny access to records or to
portions thereof where the information, if disclosed, could endanger the life or safety of any
person. To properly invoke this exemption, as agency is "not required to prove that a danger to a
person's life or safety will occur if the information is made public." Stronza v. Hoke, 148
A.D.2d 900, 900-01 (3d Dep't), lv denied. 74 N.Y.2d 6l I (1989), lnstead "there need only be a
possibility that such inf-ormation would endanger the lives or safety of individuals." Id.; see also.
eo Rall,mv v Norv Ynrl l-i1r Prrlir.o l)orrt
87 A I),3d 874, 875 (l't Dep't 2011) (holcing
"agency in cluestion need only clernonslrale "a possibility cll'endarngerIrrrcnt.]" in order to invoke
this exemption," ancl thrt clisclosurc of pelsons rvho spol<e r.vith policc during investigation, but
w'ho never bccrmc tc'stif\,ig r,vilncsses was excnlpl. ancl that safty concenls were established
because once nirnc ws clisclosec. lurvone sy,'mpathetic to the arrestee ccluld go orl the Internet
and learn where the pcrson rvorked and lived): Johnson v. New York Ciq Police Dep't, 257
A.D.2d 343,348-49 (lst Dep't) (holding that certain information, by its very nature, could
24
endanger the lives or safety of individuals if it were to be released in an unredacted form), appeal
dismissed, 94 N.Y.2d 791 (1999).
Nor does the agency need to provide a detailed description of the contents of such
documents, because disclosing the underlying facts contained in the subject records would
"effectively subvert the purpose of
fthe
exemption]." Matter of Nalo v. Sullivan,l25 A.D.2d
3ll, 312 (2d Dep't 1986), lv denied 69 N,Y.2d 612 (1987). See Lesher, 19 N,Y.3d at 67
(upholding agency's ability to identili generic kinds o1'docrunents for which law enforcement
exemption is clairned. and the generic risks posed by disclosutc of such clocuments).
f.
Cirale v.
80 Pine Street Corp.,35 N.Y.2d l13, l19 (1974)("A description of the material sought, the
purpose for which it was gathered and other similar considerations will usually provide a
sufficient basis upon which the court may determine whether the assertion of governmental
privilege is warranted"),
There can be no serious doubt here that disclosure of whether Petitioner, the
Harlem Shura or the Mosque of Islamic Brotherhood are or were the subject of investigations
andlor surveillance could impair the lives and safety of others. This includes the lives of the
members of the law enforcement community, undercover officers and confidential informants,
members of the public who are cooperating in the NYPD's investigation and anti-terrorism
efforts, as well as members of the public at large were would-be terrorists given the ability to
evade detection andlor capture.
Such safety concerns are consistently upheld as legitimate bases for withholding
responsive records. For example, in llurberti. Girvin &. Ferla:z.zc P.C. v. New York State Div. of
Stale Police
,
218 A.lD.2d 494. 4L)q (3d Dep't 1996), the Court fbund that disclosure of the troop,
zone, and station assignrnents of'police ol'f-rcers coulcl endanger the lil and safety ol those
offcers and was, tlrerefore. ptopcrly withheld).
,SSg Setl'Cters_y*l3laq!,
278 A.D.2d 10,13 (1st
25
Dep't 2000)(',there is lio <oubt that revealing lhe identity of' the undercover oI1-tcers would
seriously.ieopatdize their safet.v-), q_v_ffU.ld-p-n
!g
grounds. Ia-ttley v. N.Y.-eitJ Police Dep't,
96 N,Y.2d 873 (2001).
In Mattet of Urban Ju$_tice Ctr.,2010 N.Y. Misc, LIXIS 4258. the Court denied
access to p<lrtions of' NYPD's manual relating to investigation of prostituticln, finding that
disclosure. "could allow potential perpetrators to disccrn the factors ancl signals which could
identify the ofcer as an uuicleroover" ancl, therelbre, posecl u,t unr.urnnable danger to the salty
of unclercover offi cers.
In an analogoLls context. the need to safeguard the safe and secure operations of
the trrisons
is well-establishecl. ln Flow*ets":*SUl,[iyAn, 149 A.D,zd287 (2d Dep't 1989), the
Court addressed a IrOIL request l'or sper:ifcations and other data relating to the electrical and
security transmissic>n systenrs o1'Sing Sing Correctional lracility. In f,rnding that such records
were exernpt fiom disclosut'c'. the Court lbuncl:
It seems clear that disclosure of details regarding the electrical,
security and transmission systems of Sing Sing Correctional
Facility might impair the effectiveness of these systems and
compromise the safe and successful operation of the prison. These
risks are magnified when we consider the fact that disclosure is
sought by inmates. Suppression of the documentation sought by
the petitioners, to the extent that it exists, was, therefore, consonant
with the statutory exemption which shelters from disclosure
information which could endanger the life or safety of another.
149 A.D.2d at 295. See also BeYah v. Goord. 309 A.D.zd 1049 (3'd Dep't 2003) (employee
staffing records that would reveal the postings of correction officers throughout the facility
properly withheld from disclosure); Boddie v. Goord,251 A.D,2d 799 (3d Dep't) (applying
exemption to provisions of manual concerning the supervision and security of inmates), lv
denied, 92 N.Y.2d Sl0 (1998); Stronza, 148 A.D.2d 900 (applying exemption to portions of
certain program and security assessment summaries in possession of conectional facility).
26
In invM
Slip Op 321611J (Sup. (:1,
N.Y
blLreprints of' M1'A's subways.
fo I I or,ving c-xtcndcd cuote :
ti
'l
lan Auth..20l0 N.\'. Misc. LEXISi 3829.2010 NY
Oo.. Aug. 10.2010), thc IrOIL reqr.rest sought maps and
Thc Court's reasoning in denying this request rnerits the
The NYCTA subway system is highly vulnerable to terrorist attack
and the extent of such vulnerability has been accentuated by a
number of failed plots in New York City in recent years.
Respondent has set forth the kind of information that would be
available if the NYCTA subway station blueprints were made
available to petitioner or other members of the public and how
such disclosure could have potentially devastating effect by
making available to potential tclrorists highly sensitive material
concerning structural details of the stations, the location of
electrical, computer and other equipment and other information
which would enhance the ability of such terrorist to maximize the
damage to the NYCTA subway system and increase the loss of
lives. Moreover, respondent has made clear that the danger posed
to the life and safety of riders and NYCTA employees by the
disclosure of the materials sought is more than
just
speculative, but
rather, based upon the number of terrorist attacks that have
targeted transit systems around the world in recent years, is a very
real and potential danger that far outweighs petitioner's right to
access.
2010 N.Y. Misc. l,t:XlS 3829, rt
*
I3-14,
As explained by Chief Galati, there is no doubt that disclosing whether Petitioner,
the Harlem Shura or the Mosque of Islamic Brotherhood are or were the subject of investigations
andlor surveillance
would likely oompromise the salty and operational value of
sources o1 information used in NYPI)'s counter-terrorism
investigations, as the subjects and their associates most certainly
would be trying to identify who is or was providing information
about them. In so doing, they would be scrutinizing every person
with whom they came in contact. Not only would this endanger
any actual sources of information, it would endanger persons who
were not sources, but about whom suspicion was raised. , . . Not
only would such disclosure undermine the integrity and
effectiveness of an ongoing or future investigation, it easily could
risk the lives and safety of those working for or in cooperation with
the NYPD or were suspected of doing so,
21
Thus, the inappropriate sharing of such information could
endanger the lives and safety of the people who are identified
either as undercover offcers or confdential informants, including
members of the public who voluntarily provide lead and other
information to the NYPD Intelligence Bureau with an expectation
of conhdentiality in return. Also, it must be kept in mind that the
lives and safety of the friends and families of sources, both in the
United States and overseas, could also be endangered.
Galati Aff. at
II32,
33.
Additionally, such disclosure would
jeopardize the ability of the NYPD attract,
deploy, and retain sources of information by raising serious doubts about its ability to protect
their confidentiality." Galati Aff, at
U
34. NYPD's inability to protect conhdentiality also will
have a detrimental impact on NYPD's relationship with other law enforcement agencies, which
may become reluctant to share, and may actually withhold, vital information from NYPD, Such
consequences are simply unacceptable "in the post-September llth world where sharing
information between government agencies is critical to maintaining the safety and security of the
United States." Id. at
t[
36,
The compelling public interest in protecting the lives and safety of the people of
New York demands that the NYPD not be required to specify which individual or organization is
or has been the subject of ongoing or contemplated investigative activity. As NYPD's
opposition to providing an official confirmation or denial of the existence of responsive
documents (which necessarily would reveal whether Petitioner, the Harlem Shura or the Mosque
of Islamic Brotherhood are or were the subject of investigations and/or surveillance) is tethered
to the "life or safety" exemption found in Public Officers Law
$
87(2)(, its assertion of the
Glomar doctrine is entirely proper.
L
4 The Court Should Defer fn NVPD
The NYPD is responsible for the protection of New York City and has a special
need to prevent such disastrous events from occurring again. In fact, the City Charter imposes
this great responsibility on the police force when it directs that it "shall be their duty to preserve
the public peace, prevent crime,
[and]
detect and arrest offenders". New York City Charter
$
435
(a). Through the years, Manhattan has repeatedly been the target of terrorist attacks. These
include the 1993 World Trade Center bombing, the 1993 plot to bomb several landmarks
including 26 Federal Plaza,Ihe 1994 attack of Yeshiva students gunned down on the Brooklyn
Bridge, the 2001 attack and destruction of the World Trade Center during which more than 2000
people were killed, the 2003 plot to destroy the Brooklyn Bridge, and the 2004 plot to attack
financial targets including the New York Stock Exchange and the Citicorp Building, Other
terrorthreats are described more fully by Chief Galati (atTT 16 and 17). The Senate Intelligence
Committee has put together a summary of terrorist plots stopped and subjects arrested between
2009 and 2012. See
http://www.feinstein.senate.gov/public/index,cfm/files/serve?File id:adec6e l0-68ed-4413-
8934-3623edc62cef
fhe prevention of terrorist acts against the people of New York is of paramount
importance and overrides the public's interest in disclosure of the requested records or in
obtaining knowledge as to whether a particular individual or group is or was the subject of
investigative interest. T'he NYPD's expertise in this area is unparalleled and, given the high
stakes and severe consequences at issue here, great deference should be given to its
judgment
in
what constitutes a threat to New York City's security. In Cassid), v. Chertoff, 471F.3d 67 (2d
Cir. 2006), the Second Circuit recognized an enhanced special need to defer to law
enforcement's expertise and opinion where the prevention of terrorist attack is at stake:
29
It is clear to the Court that the prevention o1'terrorist attacks on
large vessels engaged in mass transportation and determined by the
Coast Guard to be at heightened risk of attack constitutes a
"special need." Preventing or deterring large-scale terrorist attacks
present problems that are distinct from standard law enforcement
needs and indeed go well beyond them. See. MacWade, 460 F'3d
at 272 ("fPlreventing a terrorist from bombing the subways
constitutes a special need that is distinct from ordinary post hoc
criminal investigation."); Nicholas, 430 F'.3d at 661 (explaining
that "[w]hat unifies
fthe
Supreme Court's "special needs"] cases,
despite their varied contexts, is that in each instance, the Court
found that the suspicionless-search regime at issue served some
special need distinct from normal law-enforcement needs"). There
is also an obvious nexus between protecting a ferry and guarding
against the threat of terrorism through minimally intrusive searches
of vehicles and carry-on baggage. Indeed, as in the case of airline
hijacking, a large ferry commandeered by a terrorist becomes a
weapon, or as in the case of subway bombing, the ferry becomes a
death trap, Either way, the government has a "special need" to
prevent such potentially disastrous situations from developing, and
courts have readily aoknowledged the special government need in
protecting citizens in the mass transportation context. See. e.g.,
Skinner, 489 LJ.S. at 608-13
f(testing
railroad employees for drugs
and alcohol when safty incidents occur); MacWade, 460 F.3d at
271-72; Uniled States v. l'lartwell,436 F.3d 174, 179 (3d Cir,
2006) (Alito, .T.) (pre-boarding search of airline passengers' carcy-
I Inited States v.
on baggage); Edwards, 498 F.2d at 500 (same);
Davis, 482 r-.2d 893, 910
19tr'
Cir. lg73) (same).
Cassidy, 471 F .3d at 82.
The need for deference also was clearly recognized in NYCLU v. NYPD,2009
N.Y. Misc. t.tlxIS 2542 (Sup. Ct.. N.Y, Co. .Tune 2(r, 2009). In upholding NYPD's denial of
disclosure of docurnents relaling 1o NYPI)'s Lor,r,cr N4anhaltan Scculit-v" hiitiative ("l,MSI"),
designecl to prevent and cleJlid against lerrorisl activity in lor.ver Manhattan, the Court found that
'l'here
is tiotring in the pctitioner's papers
"vhich
provicles any basis
for the coult to qucstion the goocl fith ancl rersottablottess ol'the
respondents'
juclgtnent and evalurtion of' the danger posecl by
disclosing the specilic infbtra1ion sor.tghl by tlie petitioner about
tlie s),stcm's opc-rational details. as well as disolosing the
assessmc-nts which l-rrve bce n nlade about the system. See
American-Arab m v. tI.S
Llo_ru_l-a_ru!_,!q!-l-ty.
516 []. Supp,2cl 83, 89 (D.D,C, 2001). See
ty Stuclies v. LJ,S, D.O.J., 331 l.3d
't
of
also
(lentcr
fbr Nati
30
918,927 (t).C.
(lir
200-i. Although. as cliscussecl errlier. the City
has disclosccl sonrc iul'ormation abor,rt the LIvlSI. the respondents
have clcarly deterrnined that such limitecl disc losurc does not
compronrisc the integrity ancl c1'1cac1, of'the svstetn. By cloing so.
the responclents hrvo hardl,v rvarved their right to deterntine rvhat,
if'zrny', othel inlormatron may be clisclosed without unclermining
the opcration of thc LMSI.
2009 N.Y. Misc. LtiXIS 2542. at
+ll,
See ACLTJ v. Dep't of Justice, 681 F.3d af 70-71
("'Recognizing the l'elative conlpetencies ol.the execulive aud
judiciary, we believe that it is bad
law and bad policy to seconcl-guess the preclictive
.juclgurents
rnacle by the government's
intelligence zrgencies' rcgarding whetl-rel disclosurc <f thc inlormation reclacted liom the OLC
menrorancla would pose a threat to natioual secLrrity"Xquoting Wilnor, 592 F.3d at 76)(internal
quotation marks omitted).
Again. case Iarv cleveloped undct' FOIA is instructive, As noted above, in
evaluating an agency's
l_qlg
response, a court must accord "substantial weight" to the agency's
affidavits, "provided
lthatl
the
justifications for nondisclosure are not controverted by contrary
evidence in the record or by evidence of . . . bad faith." Minier, 88 F,3d at 800 (internal quotation
marks omitted). See l)avis_v._lhlqcl SlAqil)sp:Lqfllclulld_Sci.2013 tJ.S. Dist. I.EXIS
91 386< rt
*33
(ll.D,N,Y. Jvne 27
,201
3).
. . , ."[t]he test is not whether the court personally agrees in full
with the CIA's evaluation of the danger - rather, the issue is
whether on the whole record the Agency's judgment
objectively
survives the test of reasonableness, good faith, specificity, and
plausibility in this field of foreign intelligence in which the CIA is
expert and given by Congress a special role." Gardels v. CIA,689
F.2d 1100, 1105 (D.C. Cir. 1982); see also Military Audit Project,
656 F .2d 724, 738 (D.C. Cir. 1981X"[T]he Executive departments
responsible for national defense and foreign policy matters have
unique insights into what adverse affects
[sic]
might occur as a
result of public disclosures of a particular classified record.").
Bennett and Neller's accounts easily clear the low hurdles of
reasonableness, logic, and plausibility. Their assessments,
moreover, are "called into question
[neither]
by contradictory
evidence in the record
[n]or
by evidence of agency bad faith,"
Halperin v. CIA,629 l:.2d 144^ 148 (D,C.(lir. 1980),
3l
Juclicial Watr:h. Inc. r,. LJ.S, l)ep't tll'Def'ense,857 1". SLrpp,2d44.62 (D,Cl, Cir.2012).
As described in the Galati Affidavit, at
flfll5-17,
New York City has been and
continues to be the target of numerous terrorist attacks and plots. The risk of a future attack or
plot is realistic, not merely speculative.
'l-he
possibility of endangerment facing people,
buildings and property is a risk that the NYPD is duty bound to assess and against which it must
diligently act, in view of its obligation to protect the public safety of the City of New York,
Here, Respondents have explained the substantial grounds on which they believe
that disclosure of whether Petitioner, the Harlem Shura or the Mosque of Islamic Brotherhood
are or were the subject of investigations andlor surveillance -- a disclosure that would necessarily
result from any conf'lrmatory response to Petitioners' F'OIL request, including the affirmative
assertion of any exemptions -- would interfere with their investigations and
jeopardize
national
security, reveal non-routine techniques and endanger the lives and safety of numerous people,
Such disclosure would impair the elfectiveness of NYPD's counter-terrorism operations and
would place New York City at greater risk of attack, as maintaining the confidentiality of the
details of its implementation is of paramount importance to the security of New York City. As in
NYCLU v. NYPD Petitioner here can offer no rational basis on which to question "the good
faith and reasonableness" of NYPD's
judgment regarding the consequences of disclosure. Thus,
the Court should defer to the NYPD's predictive judgments of foreseeable harm in determining
the extent of disclosure of information that affects public safety,
* * , > r
Although it appears that no court in New York has had occasion to decide the
application of the Glomar doctrine in connection with a State court FOIL proceeding, it is clear
that there should be no barrier to its adoption here. As described above and in the Galati
Affidavit, the grounds for NYPD to decline to disclose whether Petitioner, the Harlem Shura or
32
the Mosque of Islamic Brotherhood are or were the subject of investigative interest and activity,
are tethered to existing FOIL exemption, making the Glomar response readily available. In light
of the harms which would result from such disclosure, the similarities between the pertinent
provisions of FOIL and FOIA (which is frequently refened to in interpreting FOIL) and the
similarities of the principles at stake in these statutes, Respondents respectfully submit that there
are ample grounds for the Court to allow NYPD to protect its legitimate interests and to invoke
the Glomar doctrine.
CONCLUSION
For the reasons set forth above, Respondents respectfully request that the Court (i)
recognize the validity and application of the Glomar response in connection with Petitioner's
FOIL Request and not compel Respondents to provide any further response, (ii) deny the
Verified Petition in its entirety, and (iii) award them such other and further relief as this Court
deems just
and proper.
Dated: New York, New York
February 13,2013
ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Attorney for Respondents
100 Church Street, Room 2-l2l
New York, N.Y. 10007
(212) 3s 76
By
J S
t tion Counsel
tz
33