In what appears to be an unprecedented decision, a New York trial court has allowed the New York Police Department (“NYPD”) to issue a “Glomar” response to a state open records request, meaning the government refuses to confirm or deny whether responsive records exist.
The decision appears to be the first time that a court anwhere in the U.S. has upheld the use of such a tactic by a state agency. The Glomar response has historically been used only with regard to requests made to federal agencies that involve sensitive matters of national security.
The case, Abdur-Rashid v. New York City Police Department, involved a request by Imam Talib Abdur-Rashid for records regarding NYPD surveillance of himself and his mosque in New York City. The city refused to disclose to Mr. Abdur-Rashid whether any such records existed, and told him that even if they did exist, such records would be exempt under the New York Freedom of Information Law (“FOIL”).
In its decision, the court somewhat perplexingly acknowledged that according to federal and state case law, “[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.” However, it then went on to state that as this was a case of first impression, the NYPD’s use of a Glomar response “is in keeping with the spirit of similar appellate court cases.” The court determined that “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.” Therefore, it granted the NYPD’s motion to dismiss the case.
At the federal level, the “Glomar” response evolved out of a FOIA request to the CIA for records regarding a ship, the Glomar Explorer, which was involved in an operation to retrieve a sunken Soviet submarine. The case, Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), resulted in a doctrine that allows federal agencies to “neither confirm nor deny” that they have records that are responsive to a FOIA request when the agency states that it could be harmful to do so. At the federal level, use of Glomar responses is premised on the argument that there are certain matters of national security that would result in irrevocably harm if divulged to the general public. It has been criticized by open government groups, including the Reporters Committee, because it allows agencies to deny FOIA requests without giving detailed reasons that the requesters can argue against. Once an agency invokes the Glomar doctrine, courts generally afford it great weight and rarely inquire further. But in the almost 40 years of the doctrine’s existence in federal courts, no state court has allowed its application in response to a state open records request.
The Reporters Committee recently filed an amicus brief in another case where the state of New Jersey has tried to invoke a Glomar response in response to a request for information about a priest who might have been involved in a sex abuse scandal. That case, North Jersey Media Group v. Bergen County Prosecutor’s Office, has not yet been decided. In its brief, the Reporters Committee argued that the Glomar doctrine should not be allowed at the state level as it was only developed at the federal level to protect national security interests, and that the host of problems that have accompanied its use would be carried over into state law, resulting in increased secrecy and less accountability to the public.