Joseph Goldstein reports that the New York Supreme Court has ruled that New York City police can now refuse transparency by employing the CIA tactic of “neither confirming nor denying” public requests for information:
On Thursday, New York State’s highest court told the New York Police Department that it was free to use the phrase in response to inquiries from citizens who want access to their police files to learn if they have been the subject of surveillance.
The ruling, by the state Court of Appeals, carves out a new exemption in the state’s Freedom of Information Law, which has been understood to require local agencies to at least acknowledge the existence of records, even if they were not required to release them.
But the ruling for the first time allows the New York Police Department to avoid even answering whether such files exist, said Christopher T. Dunn, a New York Civil Liberties Union lawyer who filed a brief in the case. “That’s the ultimate act of secrecy,” Mr. Dunn said.
The case before the court involved public-record requests filed in 2012 by two men to get records relating to any surveillance of them by the police. The men, who are both Muslim, filed the requests after a series of articles by The Associated Press described a secretive Police Department counterterrorism program that conducted extensive surveillance of Muslim organizations and mosques. One of the men, Talib Abdur-Rashid, is the imam of a Harlem mosque. The other man, Samir Hashmi, was a student at Rutgers University and active in its Muslim Student Association. After the Police Department refused to confirm or deny the existence of the records they were requesting, the men sued.
The police maintained that even disclosing the existence or nonexistence of any such records — let alone publicly releasing any that existed — would provide too much information. “The knowledge that a person or group is the subject of a N.Y.P.D. counterterrorism investigation would allow that person or group to alter their behavior so as to avoid detection,” the department’s intelligence chief, Thomas Galati, wrote in an affidavit. “Conversely, the knowledge that a person or group is not a subject of investigation would allow such persons to more freely engage in illegal activity.” …
In a statement, the Police Department said it has “rarely” responded to public record requests with a “neither confirm nor deny” answer. “The department will continue to do so only on a very limited basis and where appropriate,” the statement said.
But Mr. Dunn, the civil liberties lawyer, expressed concern that the Police Department would keep to that.
“The big question is how far they are going to push this,” he said, noting that the Police Department recently issued a “neither confirm nor deny” answer to a public records request the New York Civil Liberties Union had filed that sought information regarding a 2014 Black Lives Matter protest. In that case, the civil liberties union wanted to know if the police had listened to — or jammed — phone calls among demonstrators.
“They’ve already used it in a protester case,” Mr. Dunn said.
What an odious ruling. It’s one thing to defend the value of secrecy on the national/international spying/investigative level wherein there is hypothetically a collective public good to be served by non-disclosure. It’s entirely another thing to rule that domestic authorities can simply refuse to answer public inquiries from citizens, journalists, etc. for private reasons.