Responding to a Freedom of Information Law request by neither confirming nor denying the existence of such information or data
Samir Hashmi v New York City Police Department, et al., 2016 NY Slip Op 04318, Appellate Division, First Department
Supreme Court denied the petition brought by Talib W. Abdur-Rashid pursuant to CPLR Article 78 seeking to compel the New York City Police Department [Department] to disclose documents requested pursuant to FOIL. The Department's response to Abdur-Rashid's FOIL request was that it "would neither confirm nor deny" such records or documents existed. The Appellate Division unanimously affirmed the lower court's ruling.*
Addressing the Supreme Court's ruling in Samir Hashmi v New York City Police Department,** the Appellate Division, after considering the differences between the two statutes identified by the Hashmi court, concluded that they do not justify rejecting the Glomar doctrine in the context of FOIL.
The Appellate Division noted that while federal case law regarding FOIA is not binding on it, it is "instructive" when interpreting FOIL provisions and the application of the Glomar doctrine to FOIA requests has been widely approved by federal circuit courts.
Further, said the court, the Department met it burden to "articulate particularized and specific justification" for declining to confirm or deny the existence of the requested records. In this instance the records sought information related to Department investigations and surveillance activities, including showing that answering the inquiries “would cause harm cognizable under the law enforcement and public safety exemptions of Public Officers Law §87(2).”