Tuesday, June 07, 2016

Responding to a Freedom of Information Law request by neither confirming nor denying the existence of such information or data


Responding to a Freedom of Information Law request by neither confirming nor denying the existence of such information or data
Abdur-Rashid v New York City Police Dept., 2016 NY Slip Op 04318, Appellate Division, First Department 
Samir Hashmi v New York City Police Department, et al., 2016 NY Slip Op 04318, Appellate Division, First Department

A governmental agency’s response to a Freedom of Information Law [FOIL] request stating it would “neither confirm nor deny” it had information concerning focus of the FOIL request in its possession is characterized as a “Glomar response” -- the Central Intelligence Agency’s response to a FOIL request for information concerning the activities of the Glomar Explorer, a salvage vessel allegedly built at the request of the CIA in an effort to salvage a sunken submarine.

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.*

The Appellate Division explained that FOIL does not prohibit the Department from giving a Glomar response to a FOIL request where, as here, the Department "has shown that such confirmation or denial would cause harm cognizable under a FOIL exception."

Citing Hanig v State of N.Y. Dept. of Motor Vehicles., 79 NY2d 106, the court said that although Abdur-Rashid contends that a “Glomar response is impermissible in the absence of express statutory authorization," the Glomar Doctrine is "consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL,” as it allows an agency to safeguard information that falls under a FOIL exemption.

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).”

The Appellate Division, referring to Wilner et al,v NSA,*** then cautioned that by its ruling in these two actions it was not suggesting that any FOIL request for Department records would justify a Glomar response, opining that "An agency resisting disclosure of the requested records has the burden of proving the applicability of [a FOIL] exemption" and must submit "a detailed affidavit showing that the information logically falls within the claimed exemptions" and "the basis for [the agency's] claim that it can be required neither to confirm nor to deny the existence of the requested records."

* The Appellate Division unanimously reversed, on the law, the same Supreme Court’s denial of the Department’s motion to dismiss the Article 78 petition filed by Samir Hashmi seeking to compel it to disclose documents requested by Hashmi pursuant to FOIL and to submit an answer to the petition.

**See Samir Hashmi, et al v New York City Police Department, 46 Misc 3d 712, 722-724

*** USCA, Second Circuit, Docket No. 08-4726-cv, [Petition for writ of certiorari denied, US Supreme Court]

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.