Abdur Rashid v. New York City Police Department involves a state Freedom of Information Law (FOIL) request filed by Imam Talib Abdur-Rashid to obtain records about himself and his mosque that were collected as part of the NYPD’s dragnet surveillance of Muslim New Yorkers, as reported by the Associated Press in 2011. The NYPD responded by refusing to confirm or deny the existence of the records, attempting to invoke a federal secrecy rule known as the Glomar doctrine. The Glomar doctrine dates back to the 1970s and allows federal agencies to assert that they can “neither confirm or deny” the existence of records requested through the federal Freedom of Information Act when doing so might compromise national security. A state trial court permitted the NYPD to issue a Glomar response for the first time in the history of New York FOIL practice. The decision is now on appeal to the Appellate Division, First Department. The Brennan Center for Justice and the New York Civil Liberties Union filed an amicus brief arguing that the federal Glomar doctrine does not apply to state FOIL requests and should not apply in this case.
The Brennan Center’s brief takes issue with the lower court’s decision by arguing two points—first, that the decision to import federal Glomar doctrine into FOIL should be made by a legislative authority, rather than arbitrarily imposed by the judicial branch. Incorporating Glomar doctrine into FOIL would be a significant statutory deviation from the openness and transparency granted by FOIL as it currently stands. As such, the brief argues that neither the federal precedent for Glomar, nor the perpetual possibility of terrorism should be considered an adequate justification to judicially creating the Glomar doctrine under state law.
Second, the brief urges the court to carefully consider the appropriateness of the NYPD’s blanket Glomar response, given that the NYPD’s claimed need for secrecy over the existence of responsive records is at odds with the public’s awareness of the activities such records pertain to—namely, the surveillance of New York mosques and Muslim communities. The brief makes clear that Glomar is an exceptional doctrine, even under federal law, and as such, should not be incorporated into state law in such a sweeping manner without careful scrutiny. As evinced by this case, broad-based acceptance of the Glomar doctrine at the state level would be a significant constraint on the public’s ability to gather information under FOIL, and accordingly, these sweeping demands for secrecy should require more careful analysis by the Court before a decision is rendered.