This Week in Transparency: Court gives NYPD Glomar powers and more
CJ Ciaramella
October 17, 2014
This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.
"Information is the currency of power." — Barton Gellman, author and journalist
NYPD gets itself a Glomar doctrine
Threats to press freedom around the world are at an all-time high. Sign up to stay up to date and take action to protect journalists and whistleblowers everywhere.
Thanks for signing up for our newsletter. You are not yet subscribed! Please check your email for a message asking you to confirm your subscription.
The New York Supreme Court dismissed a lawsuit against the NYPD challenging its refusal to confirm or deny the existence of records related to its surveillance of a New York City mosque. The case appears to be the first time that a court has affirmed a "Glomar doctrine" below the federal level. Adam Marshall from the Reporters Committee for Freedom of the Press has more:
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.
Elizabeth Kimundi, a lawyer for the firm of Omar T. Mohameddi, which is representing Abdur-Rashid, said over the phone that her firm is drafting an appeal.
That appeal will be one to watch, because this is a "case of first impression," meaning that, if the ruling is upheld, it will set precedent in the state of New York. And it would be a bad precedent.
The Glomar doctrine gives agencies the obvious power to hide the existence of records, but it also allows agencies to short-circuit the appeal process, since requestors can't file an appeal for records they don't know exist. The NYPD consistently flouts both the spirit and letter of New York's Freedom of Information Law. There is no expectation that it would use Glomar powers in good faith. A Glomar doctrine would just become another tool in Police Plaza One's aggressive strategy to block and discourage FOIL requestors.
LAWSUITS
FOIA response of the week: Courtesy of Inside Higher Ed's Michael Stratford, the Department of Education needs to get a better scanner.
The Student Press Law Center, a non-profit that provides legal aid to student journalists, celebrated its 40th anniversary last night at the National Press Club. You know you're a pretty cool First Amendment organization when Mary Beth Tinker of Tinker v. Des Moines shows up for your party.
The SPLC also recognized two promising student journalists: Tanvi Kumar, who wrote a lengthy article last year about rape culture at Fond du Lac High School using anonymous sources. After the article was published, the school instituted a censorious prior review policy, which was later overturned under pressure from the SPLC and other groups.
And Gillian McGoldrick, editor of The Playwickian at Neshaminy High School in Pennsylvania. Last year, the paper's editors decided it would not print the name of the school's mascot. (It's the same name as a certain Washington-area football team with a 1-5 record this season.) The school confiscated copies of the paper, cut its budget, and suspended both the faculty adviser and McGoldrick.
Congrats to the SPLC on four decades of protecting press freedoms for high school and college students. Here's to many more. Report on authorized leaks of classified info to media is classified, can't be released to media
Steven Aftergood of the Federation of American Scientists writes:
A report to Congress on authorized disclosures of classified intelligence to the media — not unauthorized disclosures — is classified and is exempt from disclosure under the Freedom of Information Act, the National Security Agency said.
The notion of an authorized disclosure of classified information is close to being a contradiction in terms. If something is classified, how can its disclosure be authorized (without declassification)? And if something is disclosed by an official who is authorized to do so, how can it still be classified? And yet, it seems that there is such a thing.
Pro Publica: Police are getting surveillance tech and military gear from private foundations to avoid public oversight and transparency. Muckrock, National Freedom of Information Coalition win Knight Foundation Prototype Fund grants
The Knight Foundation announced 18 recipients for its Prototype Fund, including Muckrock and the National Freedom of Information Coalition.
From Muckrock: "Since we started in 2010, you've helped us make more than 400,000 pages of government documents public. Now, with this grant, we're going to build a better way of making those docs useful, relevant, and accessible, while tackling larger and more diverse reporting projects[...] We're taking what we've learned - from facilitating over 11,000 requests, from our assignment system, from our data on which of those 11,000 requests had the biggest impact - and we're using that knowledge to build tools that will help analyze not just large documents and data sets received through FOIA, but information from outside the realm of public records entirely, as well as direct contributions from the MuckRock community."
The NFOIC says it will use its grant "to create pilot projects aimed at developing open government training modules for public officials and records custodians, particularly in states where open government training is mandated."
You can see the full list of grant recipients here.
FCC commissioner says agency failing Obama's transparency standards: FCC commissioner Ajit Pia wrote a dissenting statement after the FCC decided that communications from an outside law firm were "intra-agency memoranda" and exempt from disclosure:
This item raises a simple question: Is a private law firm representing a private client part of the Federal Communications Commission? My answer is no, but the Commission disagrees. In order to shield documents from public disclosure, today’s FCC order brings the attorneys of Wiltshire Grannis into the Commission’s ranks. Because that conclusion is inconsistent with the text and purpose of the Freedom of Information Act (FOIA), defies common sense, and does not reflect a commitment to transparency, I must respectfully dissent.
Fiscal year 2014 is over, and federal agencies must submit their FOIA reports for FY2014 by Dec. 5.
Ferguson: The Reporters Committee for Freedom of the Press reports keeps digging into Ferguson, Missouri's compliance with open record laws:
In response to a Sunshine Law request, the Reporters Committee for Freedom of the Press has received email between Ferguson City officials and Acumen Consulting, a St. Louis-based data firm that has been hired by the city to search its records. According to the email messages, one search by Acumen Consulting for seven keywords over 14 email accounts took them five hours. At Acumen’s $135/hour billing rate, the search would have cost $675, plus a base fee of $500, for a total of $1,375. Acumen estimated that searching an additional 49 mailboxes for the same seven keywords would take “approximately 9 more hours.” That would have cost another $1,215.
Meanwhile, Missouri state auditor finds nbsp;officials routinely violate state sunshine laws. I'm just as shocked as you are.
Forest Service says it never intended permit policy to regulate photojournalists.
Documents of Note
Matthew Burgess, who's working on a book about U.K. freedom of information laws, passes along this tidbit he found in the book Former secrets: Government Records made public through the freedom of Information Act:
Agency: Department of Defense
Requester: Church of Scientology.
Disclosed: The Army use of infected homing pigeons and the dropping of contaminated turkey feathers in cluster bombs over oat crops in upstate New York to prove that a “cereal rust epidemic” could be spread as a biological warfare weapon. The Army used swarms of mosquitoes to determine how far a yellow fever virus could be spread.
STATE NEWS
EVENTS
Happening now: There's a pop-up art exhibit at Cooper Union in NYC running now through Nov. 7 called The Clandestine Reading Room. According to the press release, it includes "a library of leaked and declassified documents, along with a workshop and expert panel discussion" and "confronts visitors with a provocative and politically charged archive, a compelling slice of the much larger archive that remains hidden from public view."
From the press release: "The Clandestine Reading Room will host an expert panel discussion of these issues on Friday, November 7. Panelists include Heidi Boghosian, executive director of the A. J. Muste Memorial Institute and author of Spying on Democracy (City Lights, 2013); Kevin Gosztola, a journalist acclaimed for his coverage of the Chelsea Manning trial; Lisa Lynch, a scholar of journalism and new media, and co-founder of the Guantanamobile Project; Ryan Shapiro, a PhD candidate in history at MIT whose dissertation FOIA research has been dubbed “a threat to national security” by the FBI; and Carey Shenkman, a First-Amendment and human-rights attorney. The panel discussion will be held at 6 pm in the Rose Auditorium at the Cooper Union."
Other events ...
Subscribe to CJ Ciaramella's weekly FOIA newsletter here.