To: Bill de Blasio, Mayor
Tell the NYPD to stop using CIA-style tactics to thwart accountability
Mayor de Blasio must order the New York City Police Department (“NYPD”) to comply with New York State’s Freedom of Information-Law (“FOIL”) and to stop giving “Glomar responses” to questions about unlawful surveillance. By refusing to tell New Yorkers if or how they were spied on, the NYPD is trying to block an essential tool for transparency, democratic accountability, and the rule of law.
Why is this important?
In recent years, the NYPD has increasingly relied on “Glomar responses”—the CIA tactic of neither confirming nor denying information’s existence—when questioned about its unlawful surveillance of the Muslim community and other activists. Talib Abdur-Rashid and Samir Hashmi have been fighting the NYPD’s responses in a case that is now going to New York’s highest court, the Court of Appeals. Recently published comments about the case by the NYPD Deputy Commissioner for Legal Matters led to a strong letter from Talib and Samir’s lawyer to Mayor de Blasio calling on him to retract the comments and to “follow through on your promises to support FOIL’s policy of open government.” http://otmlaw.com/wp-content/uploads/2017/06/OTMLAW-Ltr-to-Mayor-de-Blasio-Retraction-of-Statement-by-NYPD-Deputy-C....pdf.
Talib and Samir are not alone. The NYPD threatens Glomar responses to slam the door shut in the faces of countless New Yorkers, making it harder than ever to hold NYPD officials accountable.
Activists, journalists, and civil libertarians all depend daily on FOIL to investigate police abuses and to act as citizen watchdogs. The NYPD’s efforts are a flagrant attempt to place itself above our laws and to put the police beyond the reach of the people.
Winning in court isn’t the only way to stop Glomar abuse. As a public advocate and candidate, Mayor de Blasio committed to reform the NYPD’s long pattern of surveillance abuses, and we ask him to keep his word. Mayor de Blasio is ultimately responsible for overseeing the legal arguments put forth by the NYPD and the New York City Law Department, and we will treat his silence on Glomar responses as a tacit endorsement of the tactic. With a single phone call, Mayor de Blasio could order the NYPD to comply with its FOIL obligations and cease its obstructionist tactics. We implore Mayor de Blasio to make that call.
Frequently Asked Questions
What is FOIL?
The Freedom of Information Law (“FOIL”) empowers the public to request government documents, providing a vital oversight tool for every aspect of government, and casting sunlight into the darkest corners of our bureaucracy. FOIL is used by journalists, civil rights advocates, and everyday New Yorkers to empower citizen watchdogs. Modeled on the federal Freedom of Information Act (“FOIA”), the laws were part of a post-Watergate movement to secure greater transparency and accountability.
Are there any limitations on FOIL requests?
State lawmakers specified several narrow reasons why a FOIL request might be rejected. For example, an agency can withhold documents which would impede a police investigation or compromise confidential employee records.
What is a Glomar response?
A Glomar response is the familiar phrase we’ve heard in countless spy movies: “we can neither confirm nor deny the existence of the requested information.” In practice, Glomar responses are highly restricted and can only be used by the CIA and other intelligence agencies in the most sensitive cases. Glomar is utterly inconsistent with the FOIL obligations of a municipal police force like the NYPD, which have a much narrower mission and much more limited legal authorities to engage in surveillance and national security investigations.
How has the NYPD utilized the Glomar response?
Even as the CIA and other intelligence agencies started using Glomar responses in the 1970s, the NYPD never followed suit. For decades, as the NYPD fiercely fought off FOIL requests with every tool available, they never once used Glomar, tacitly acknowledging that New York law didn’t give them that option. In recent years, that changed, as the NYPD made Glomar responses for the first time in FOIL requests relating to information on Imam Abdur-Rashid and Samir Hashmi The NYPD has sought to stonewall these two Muslims because it seems they wanted to avoid embarrassment. The two men are good law-abiding citizens and should not be subjected to surveillance in the first place. The Glomar response does not even give the Court the ability to ascertain the validity of the NYPD’s objection by stating “we cannot confirm or deny” the existence of documents. It does not give the requester the ability to challenge the NYPD when there is an abuse of power. This is in contradiction of the Freedom of Information Law, which requires state and city agencies to search and certify if documents exist or not. The Glomar theory defeats the existence of FOIL and “Open Government” under the New York Constitution, denies people’s procedural rights and prevents the courts from performing their judicial tasks.