Court of Appeals deciding whether NYPD can deny FOIL request based on Cold War-era doctrine

Legislative Gazette photo by Matt Ferremi
Appellate Lawyer Omar Mohammedi, at podium, speaks to reporters after delivering oral arguments at the Court of Appeals, alongside clients Talib Abdur-Rashid, right, and Samir Hashmi, left. The men are arguing that the NYPD had no right to deny a Freedom of Information request by Abdur-Rashid and Hashmi.

The state’s highest court must decide whether the New York City Police Department can use a Cold War-era policy to deny a Freedom of Information request to two Muslim men who suspect they were under surveillance in the wake of the September 11, 2001 terrorist attacks.

The two men — Tabib Abdur-Rashid and Samir Hashmi — argued before the state Court of Appeals that the NYPD failed to provide a valid reason for rejecting their requests for information.

Associated Press news articles and other media reports revealed that the New York City Police Department had been conducting covert surveillance on Muslim communities in New York and New Jersey in the wake of Sept. 11, 2001 terror attacks.

This led Abdur-Rashid and Hashmi to file separate Freedom of Information Law (FOIL) requests from the NYPD looking to obtain any records regarding surveillance and investigations of themselves or groups they were affiliated with.

Both Abdur-Rashid and Hashmi held prominent roles within the Muslim community. Abdur Rashid was an Imam at the Mosque of Islamic Brotherhood in Manhattan while Hashmi used to be an officer of the Muslim Student Association at Rutgers University.

“What I see and firmly believe is that my liberty and the liberty of every citizen in New York is being compromised by the NYPD seeking to operation without accountability and transparency,” Abdur-Rashid said following oral argments .

The police denied their FOIL requests, citing the Glomar Doctrine, or Glomar denial, which allows agencies to deny requests under the federal Freedom of Information Act (FOIA) without confirming or denying that the records exist.

Named after the Hughes Glomar Explorer, a salvage ship, which was used to recover a sunken Soviet nuclear-armed submarine in 1974, the Glomar Doctrine has been used since then by government agencies, including the CIA, when they claim the information falls under a FOIL exemption.

The NYPD cited the Glomar Doctrine as a reason for not complying with the Muslim mens’ FOIL request, even though the doctrine typically is used by federal agencies, not local police departments.

“I just want to add to Abdur-Rashid’s words that, in any functioning democracy, there has to be some level of accountability and transparency, and for the NYPD to use this against us — Glomar — they’re basically saying, ‘there’s one set of standards for Americans and another for Muslims Americans.’”

According to Robert Freeman, the executive director of New York State Committee on Open Government, there are several difficulties with the NYPD’s use of Glomar.

“The law has always required that the government agency meet the burden of truth. You have to demonstrate how an exception would apply. If Glomar is accepted, the burden of truth, for all intents and purposes, is thrown out the window,” Freeman said.

The lawyer representing Abdur-Rashid and Hashmi argued before the court that NYPD’s decision to deny a FOIL request is not within their rule.

Attorney Omar Mohammedi said the NYPD’s action is out of embarrassment, and they should take accountability, even if it means facing embarrassment.

“They [NYPD] need to go to the Legislature because this is a policy issue, a policy issue cannot be address by the court, policy issues have to be addressed by the legislator,” Mohammedi said.

The decision on the case is expected later this month.