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Glomar surfaces in state courts

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  1. Freedom of Information
U.S. Government photo The Glomar Explorer On March 1, 1968, a catastrophic incident aboard Soviet submarine K-129, sailing approximately 1500…

U.S. Government photo

The Glomar Explorer

On March 1, 1968, a catastrophic incident aboard Soviet submarine K-129, sailing approximately 1500 miles northwest of Hawaii, led to the loss of all people and three ballistic nuclear missiles as the ship sank to the bottom of the seabed, almost 17,000 feet below the surface.

Alerted to the event, the CIA rushed to devise an operation that would recover K-129 with the help of a specially constructed ship — the Hughes Glomar Explorer. While the mission was only partly successful, the name of the recovery ship has lived on as a special exemption to the federal Freedom of Information Act (FOIA) that allows the CIA and other agencies to “neither confirm nor deny” the existence of information. Now, for the first time, the Glomar doctrine is beginning to emerge in state courts as law enforcement agencies seek new methods to keep their records out of the public eye.

The public first learned of the efforts of the CIA to recover K-129 in 1975, based on reporting by syndicated columnist Jack Anderson and New York Times reporter Seymour Hersh. Based on the revelations, Harriet Ann Philippi, the Washington correspondent for Rolling Stone, filed FOIA requests with the CIA to uncover additional information. Ms. Philippi was particularly interested in the CIA’s efforts to persuade the media not to report on their covert mission. Unfortunately for Philippi, not only did the CIA refuse to release any records, it contended that “the fact of the existence or non-existence of the records” she requested would jeopardize national security.

Philippi filed suit in federal district court to challenge what the D.C. Circuit Court of Appeals would later characterize as “a case in which the Agency has refused to confirm or deny the existence of materials requested under the FOIA”. No provision to issue such a response exists in the statute. In the normal course of business, after a FOIA request is submitted the agency must make a “determination” by going through its records and identifying which are responsive. Afterwards, the agency must either release the records or cite a specific exemption that allows them to be withheld.

Despite these clear statutory provisions, the trial court in Philippi’s case allowed the CIA to refuse to answer whether or not it had responsive records in what has become known as a Glomar response. The D.C. Circuit ended up affirming the power of the intelligence agency to issue such a response but laid down procedural rules that were designed to ensure as much information as possible was made public to enable the requester to challenge the holdings.

Since the 1970s, Glomar responses have become a common phenomenon for those who seek information from intelligence agencies. It has even been codified in the current FOIA regulations for the CIA and the Department of Defense. Glomar responses have been particularly frequent in FOIA litigation since September 11, 2001, much to the dismay of requesters who face with an almost impenetrable veil of secrecy.

Part of the reason that Glomar cases are so difficult to challenge is that when the agency refuses to admit whether or not they have records related to the request, the nature of the case shifts to whether the subject of the request is generally something that could touch on national security. In doing so, courts give substantial deference to the conclusions of government personnel who are in control of the documents. With little information to challenge the government’s assertions, a Glomar response almost always results in a win for secrecy.

Until recently, invocations of the Glomar doctrine had been limited to federal agencies. This follows the rationale that has been affirmed numerous times in federal courts—there are certain matters of national security that would be irrevocably harmed if the public were to learn that clandestine activity was being carried out with response to a certain subject.

But now, two state trial level courts — one in New Jersey and one in New York — have allowed state law enforcement agencies to neither confirm nor deny the existence of records in response to requests under local sunshine laws. Like the federal FOIA, the laws of these states make no mention of issuing Glomar-type responses. These two courts simply created new judicially recognized exemptions, the full impact of which has only begun to emerge.

In July 2013, a reporter at Community News in New Jersey sent an open records request to the Bergen County Prosecutor’s Office, asking for law enforcement reports, complaints, 911 calls, and communications regarding Leo J. Butler, a pastor at a local church. The Prosecutor’s Office responded by stating they “decline to indicate whether it possesses any records that are responsive [to the request].”

Community News brought suit in September 2013 to compel the Prosecutor’s Office to release the records under both the New Jersey Open Records Act (OPRA) and the common law right of access. The trial court did not directly address the Prosecutor’s Glomar-esque response, but rather skipped directly to an analysis of whether the general category of records sought — not the specific records in the case — should be exempt from disclosure. It ultimately held the records need not be disclosed under the privacy provision of the New Jersey constitution. According to the court, “the investigation of an individual that has not been arrested nor charged with a crime generally must not be disclosed as privacy concerns outweigh the public’s need for the information.”

The decision has been appealed by Community News, which argues the court “created a new exemption in which a public agency is now able to deny access to public records while at the same time refusing to admit or deny whether records even exist.” The Prosecutor’s Office, however, contends that the trial court “merely recogniz[ed] and elucidat[ed] existing statutory exemptions”. The Reporters Committee, along with twenty-five media organizations, submitted an amicus curiae brief to the appellate court describing the disastrous impact of the Glomar doctrine on transparency and the impropriety of its incorporation into state law. A ruling on the appeal has yet to be made.

A second decision, coming out of a New York trial court, is more worrisome to transparency advocates because it expressly adopts the Glomar doctrine. Talib Abdur-Rashid is a New York based Imam who heads the Mosque of Islamic Brotherhood, located at the site where Malcom X’s congregation once gathered. In 2012, Abdur-Rashid submitted a request under the New York Freedom of Information Law (FOIL) to the NYPD requesting any records they had related to surveillance of Abdur-Rashid or his mosque.

In 2011, the Associated Press reported that the NYPD had set up a special “Demographics Unit” to surveil and track Muslims within the city. The Demographics Unit was set up with the help of Lawrence Sanchez, a CIA officer assigned to New York. Sanchez subsequently left the CIA to work full time with the NYPD. Another CIA officer was also assigned to work with the NYPD’s Intelligence Division as part of a “management sabbatical.”

No records were disclosed in response to Abdur-Rashid’s FOIL request. After he filed a lawsuit to force the NYPD to turn over responsive records, the law enforcement agency submitted an unusual response. The NYPD’s motion to dismiss asks the court to “recognize [the NYPD’s] legitimate law enforcement need to withhold a substantive response to Petitioner’s FOIL request, by allowing them to neither confirm nor deny the existence of responsive records.” It states that the circumstances of Abdur-Rashid’s case “provides the Court with ample basis to adopt the Glomar doctrine in connection with requests made under FOIL.”

Instead of skirting the Glomar issue like the New Jersey court, Justice Hunt squarely addressed it, finding it entirely appropriate to adopt the doctrine into the New York FOIL. The decision, handed down in September 2014, acknowledges that numerous cases have found FOIA and its provisions inapplicable to state agencies, and therefore “[i]t should follow that when a local agency such as the NYPD is replying to a FOIL request, the Glomar doctrine is similarly inapplicable.”

Perplexingly, the court then goes on to state that as this was a case of first impression it was appropriate to look to federal decisions for guidance. In so doing, it determined that the NYPD’s use of a Glomar response “is in keeping with the spirit of similar [federal] appellate court cases.” According to the opinion, “disclosing the existence of responsive records would reveal information concerning operations, methodologies, and sources of information of the NYPD, the resulting harm of which would allow individuals or groups to take counter-measures to avoid detection of illegal activity, undermining current and future NYPD investigations.” As a result, it granted the NYPD’s motion to dismiss.

The case appears to be the first time in United States history that a state court has explicitly recognized the Glomar doctrine in an open records case. Abdur-Rashid has since appealed, but no decision is expected until later this spring.

After learning of Abdur-Rashid’s case, the Reporters Committee submitted an open records request to the NYPD asking for communications between NYPD employees and federal government employees concerning Glomar responses. The NYPD denied RCFP’s request on the basis that its request did not “reasonably describe a record in a manner that would enable a search to be conducted”.

The Reporters Committee administratively appealed the denial, arguing that it described the records in more than sufficient detail to search for the requested records. In considering RCFP’s appeal, Jonathan David, the NYPD officer assigned to the case, determined that there were no agreements, contracts, or memoranda between the NYPD and employees of the federal government concerning Glomar responses. However, David affirmed the denial of RCFP’s request with respect to communications (including emails, letters, and notes) between the NYPD and federal government, stating that it did not describe a record “in a manner that could lead to its retrieval”.

A third case from New York, a companion to that of Abdur-Rashid’s, recently decided against incorporating the Glomar doctrine into state law. As a result of the AP reporting on the NYPD targeted surveillance program, Samir Hashmi, a student at Rutgers University, filed a FOIL request with the NYPD. He asked for any records related to surveillance of him or a Muslim student group he was affiliated with. The NYPD again issued a Glomar response, refusing to acknowledge whether records related to Mr. Hashmi’s request existed or not. After Hashmi brought suit against them, the NYPD sought to have the case dismissed by asking the New York trial court to adopt the Glomar doctrine. But this time, with a different judge hearing the motion, the court refused.

Justice Moulton, the trial judge assigned to the case, strongly disagreed with the idea that the Glomar doctrine could, or should, be imported into New York’s open government law. According to the opinion, doing so would be to judicially enact a “profound change” to a statute that has been finely calibrated by the legislature over many years.

“The insertion of the Glomar doctrine into FOIL would build an impregnable wall against disclosure of any information concerning the NYPD’s anti-terrorism activities”, he wrote.

The opinion also challenges whether the disclosure of information would actually impede the NYPD. Justice Moulton wrote that “case law demonstrates that the NYPD has been able to protect sensitive information very well within existing procedures that FOIL currently provides.”

Finally, the court questioned why Glomar should be coming up in the state context at all. Justice Moulton noted that the Glomar response has been shaped in federal courts in the context of national defense and foreign policy by agencies that often deal with classified documents. The court stated that this history undermines its applicability to the NYPD, a domestic law enforcement agency with no classification authority.

The NYPD has appealed the decision, and the case is expected to be heard in the spring alongside that of Mr. Abdur-Rashid.

It remains to be seen whether New York and New Jersey are isolated incidents, or whether “neither confirm nor deny” responses will become as obfuscating at the state level as it has for the federal government. Journalists everywhere should be on the lookout for these responses when they interact with state agencies, especially law enforcement. Transparency groups, including the Reporters Committee, are on the lookout as Glomar continues to resurface.