New York's High Court Allows NYPD's Glomar Response in Muslim Surveillance Case
You all know the Glomar response, you just didn't know you knew it. You've probably heard it in a movie. "We can neither confirm nor deny...." That's called the Glomar response.
The Glomar doctrine is named for the Hughes Glomar Explorer, a massive salvage ship built by the eccentric industrialist who died in 1976. Two years earlier, the CIA had used the ship to retrieve a portion of a Soviet submarine that had sunk in the Pacific Ocean in 1968, killing everyone aboard.
The Glomar featured technology designed to lift the sub more than 3 miles (4 kilometers) to the surface, but most of the sub broke apart and fell back to the ocean floor. When a journalist sought information on the Hughes-built ship in 1976, a federal court issued a ruling that allowed the CIA to “neither confirm nor deny” whether records existed on the mission. The Glomar doctrine has since been used by agencies if information falls within certain exemptions.
The NYPD used the Glomar doctrine when responding to a FOIL request by two Muslim men who wanted to know if they were part of the NYPD's Muslim surveillance program. The department didn't admit it had records but seek to deny access to them, a common defense tactic. After being denied by the NYPD, the men filed separate Article 78 proceedings against the NYPD, which were eventually consolidated. The case wound its way through the system, landing in New York's highest court, the Court of Appeals.
The men argued that the NYPD was trying to foster secrecy by using the cold war-era Glomar response. He argued that allowing the NYPD to use such a response would be giving them the ability to create a blanket exemption for FOIL requests. But in a 4-3 decision, the Court ruled that NYPD was within its rights to use the Glomar response. The Court balanced the interests of promoting open government and public accountability against the inherent dangers of premature disclosure that, especially in the counterterrorism context, could lead to loss of life for the public or law enforcement.
댓글