A Judge Says the NYPD Has to Open Up About Its Spying on Muslims

Despite the best efforts of the New York Police Department, we may soon know more than ever about its systematic efforts to spy on New York City's Muslim population.

The state supreme court ordere​d the NYPD on Monday to respond to a public records request for surveillance documents, rejecting the police department's unusual claim that it had the power to hide the very existence of such records.

In 2012, Rutgers student Samir Hashmi filed the request with the NYPD on the suspicion that he and a Muslim student group he belonged to had been spied on by the NYPD—despite being in the state of New Jersey, which happens to be outside New York City.

But the NYPD responded that it could, to quote the classic bureaucratic phrase, "neither confirm nor deny" the existence of the records that Hamshi was seeking under New York's Freedom of Information Law (FOIL).

The NYPD argued that acknowledging the existence of the records could "cause substantial harm to the integrity and efficiency of the NYPD's investigations of terrorist activities and could endanger the safety of people working undercover, or who otherwise provide information to the NYPD."

Such a reply is known as a "Glomar" response, named after the str​ange case of a 1975 CIA operation to salvage a sunken Russian submarine. That was the first time the federal government successfully deployed the "can neither confirm nor deny" response to a Freedom of Information Act (FOIA) request. Since then, the Glomar principle has become a vital tool for intelligence agencies to reject FOIA requests on national security grounds.

The NYPD's attempt to invoke the Glomar principle was novel for two reasons: First, a state or local government agency has never before attempted to use a Glomar response, at least as far as several transparency experts I consulted could tell. Second, the existence of the NYPD's suppose​dly-discontinued-but-not​-really-dead surveillance program of New York City's Muslim population is a well-established fact.

So the NYPD was arguing that revealing the existence or non-existence of records regarding a spy program that was the subject of a Puli​tzer-winning news investigation would disrupt its anti-terror investigations.

Perhaps New York's Finest were taking a cue from the CIA, who, although barred from spying on Americans, helped transform the NYPD's intelligence unit following 9/11.

"What they said was forget about FOIL. As a matter of fact, they said FOIL is useless, it doesn't apply to us," Omar Mohammedi, Hashmi's attorney, to​ld the Village Voice.

In any case, judge rejected the NYPD's arguments.

"There is nothing in the record before the court that indicates the NYPD's work has been compromised by its inability to assert a Glomar response," Justice Peter Moulton wrote. "To the contrary, case law demonstrates that the NYPD has been able to protect sensitive information very well within the existing procedures that FOIL currently provides."

Mohammedi said he expects the NYPD to appeal the most recent decision.

In September, another state supreme court justice ruled in favor of the NYPD in a similar case brought by Talib W. Abdur-Rashid, who demanded all records related to any investigation of him by the NYPD. Mohammedi's firm is appealing that decision.

That ruling was a "case of first impression"—in other words, the first time a court considered the issue. Now that there is a split at the state court level, the outcomes of both appeals will be closely watched by transparency advocates in New York and beyond.

"If we accept the notion the Glomar principle, that precludes the possibility of ​in camera inspection by courts and ability of public to know what the police are up to," Robert Freeman, the executive director of the New York Commission on Open Government, said. "None of this intended to suggest that the records must be disclosed, but certainly the public should be able to know of their existence.

"I've always believed that the Glomar principle has been wrong as a matter of law," Freeman continued. "It's fortunate that a court here was wise enough to reject it."

The NYPD is already infamous for its record of poor compliance with New York's public records law.

Former NYC Public Advocate Bill de Blasio, now the mayor, once gave the NYPD an "F" grade for its transparency. According his 2013 re​port, the cops flat-out ignored a third of all public records requests they received.

In other cases, the NYPD has reje​cted FOIA requests for its own Freedom of Information handbook and refused to hand over weapons discharge reports despite a previous court decision declaring that those reports were public record.

NYPD Commissioner Bill Bratton, who replaced the notoriously secretive Ray Kelly this January, has promised that transparency would improve at the department.

"There should be no secrets in the NYPD," Bratton ​told the Citizens Crime Commission in February. "We are going to do more to open up the organization, to make it more inclusive, to make our information more readily available to the public, and to try and format it in a way that is more easily retrievable."

City lawyers appear to have missed the memo. However, a state appeals court will soon be taking a long, hard look at the NYPD's attempts to subvert public records laws, and more light might finally be shed on city cops' expansive and enduring war on terror.

The NYPD did not immediately return a request for comment.

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