SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TALIB W. ABDUR-RASHID, Petitioner -against- NEW YORK CITY POLICE DEPARTMENT, ANd RAYMOND KELLY, in his official capacity as Commissioner of the New York City Police Department, Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules RESPONDENTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS ZACHARY W. CARTER Corporalion Counsel of the City of New York A t t o r ney r Re s po ndent s 100 Church Street, Room 2-121 New York, N.Y. 10007 Of Counsel, Jrffrey S. Dantowitz Tel: (2I2) 356-0876 SUPREME COURT OF THE STATE OF NEV/ YORK ::^:t:::Yl: .............x TALIB W. ABDUR-RASHID. Petitioners, Index No, l0l 559/2013 IAS Part 33 (Hunter, J.) -agarnst- NEW YORK CITY POLICE DEPARTMENT, ANd RAYMOND KELLY, in his official capacity as Commissioner of the New York City Police l)epartment, Respondents For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules RESPONDENTS' MEMORANDUM OF LAW IN SUPPOR ION TO DISMISS Preliminary Statement This memorandum of law is submitted on behalf of Respondents New York City Police Department ("NYPD") and former NYPD Commissioner Raymond Kelly, in support of their motion to dismiss this Article 78 proceeding seeking to compel Respondents to produce documents requested under the New York Freedom of Information Law ("FOIL"). This proceedingl presents an issue of hrst impression in New York -- namely, whether a law enforcement agency responding to a FOIL request may refuse to confirm or deny the existence of responsive records if such confirmation or denial would in and of itself be exempt. While the ability of an agency to neither confirm nor deny the existence of records is firmly embedded as part of federal jurisprudence in connection with requests made of federal ' A co-panion case, llashmi v. New York City Police Department, Index No, 101560113, commenced at the same time as the instant proceeding, presents the identical issues raised here agencies under the Freedom of Information Act ("FOIA," 5 U.S,C. $ 552), pursuant to the "Glomar doctrine" discussed below, its application has yet to be decided in connection with the New York State Freedom of Information Law. Here, Petitioner seeks disclosure from NYPD of documents relating to the alleged counter-terrorism investigation or surveillance of him and the named organizations with which he is affrliated. Responding to such a request, however, even by asserting various exemptions permitted under FOIL, necessarily would require NYPD to divulge whether, in fact, any such documents exist and, in doing so, would reveal to Petitioner whether he or that organization is or was a subject of investigation. Such knowledge should be protected, as disclosure would allow lawbreakers (or potential lawbreakers) who learn they are the subject of an investigation to modify their behavior so as to evade detection and capture, Similarly, it would allow lawbreakers (or potential lawbreakers) to continue their activities unabated, or would allow them more easily to be recruited by those with nefarious intentions, Additionally, such disclosure also would undermine the NYPD's ability to protect the safety and security of individuals in New York and elsewhere. As discussed more fully below and in the accompanying affidavit of Chief Thomas Galati, sworn to February 11,2014 ("Galati Aff."), the disclosure requested here, as to whether or not Petitioner and the entities with which he is affiliated are or were the subject of investigative interest, is itself exempt under FOIL, as such disclosure would interfere with criminal investigations, would reveal non-routine investigative techniques and could endanger the lives and safety of numerous people. Thus, Respondents ought to be permitted to withhold information pertaining to the subjects of its counter-terrorism investigations, Respondents respectfully submit that the instant proceeding provides the Court with ample basis to adopt the Glomar doctrine in connection with requests made under FOIL. 2 The Glomar doctrine is entirely consistent with FOII,. Indeed, FOIL is modeled after the federal statute, and the very same principles ae at issue, whether the record request is made to a federal agency conducting preventative investigations or to a State or City agency. Thus, there is no logical or practical reason to draw any distinction here, nor is there any reason to limit application of the Glomar doctrine to the federal statute. Accordingly, Respondents respectfully request that the Court recognize Respondent's legitimate law enforcement need to withhold a substantive response to Petitioner's FOIL request, by allowing them to neither confirm nor deny the existence of responsive records. FACTS Background As part of its law enforcement duties, NYPD conducts intelligence-gathering activities to investigate past unlawful conduct, to apprehend suspects, and to prevent such conduct from occurring in the future. Since the terrorist attacks of September 11,2001, residents of the United States, and of New York City in particular, have been subject to continued terrorist threats and a heightened risk of terrorist activities, which the NYPD investigates and seeks to detect and prevent, In this regard, NYPD devotes significant effort to the investigation and apprehension of individuals who engage in terrorist activities in the City, the deterrence of future terrorist activities, the elimination of terrorist threats and the prevention of future terrorist attacks. As described more fully in the aciompanying affidavit of Chief Thomas Galati, this work is conducted through the NYPD's Intelligence Bureau and its various sections, component units and programs through the development of leads, field work, source recruitment, intelligence analysis and production and the sharing of information with partner agencies on the local, state and federal levels. Galati Aff. at lJI 11, 13. The types of investigative activities which NYPD is authorized to conduct in furtherance of its goal of detecting or preventing terrorist activities include (i) the use of information systems to identify and locate potential terrorists and supporters of terrorist activity, assess and respond to terrorist risks and threats, or otherwise detect, prosecute, or prevent terrorist activities, (ii) visiting public places and attending events that are open to the public, (iii) conducting general topical research, (iv) use of online resources, to conduct online searches and access online sites and forums, and (iv) preparing general reports and assessments concerning terrorism or other unlawful activities for purposes of strategic or operational planning. Id. at fl 12, NYPD's efforts rely not only on the investigation of current activities, but on intelligence from activities and events that have occurred in the past. The Intelligence Bureau's investigations of anticipated unlawful activity are designed to be preemptive -- that is, to detect, deter, thwart, and prevent criminal activity, often designed to be of large-scale terrorist operations and activity -- from occurring in the first instance. Galati Aff. at fl 14. Moreover, such investigations may be discontinued without an arrest or prosecution for a variety of reasons, while the subject of the investigation continues to be of investigative interest. Id. atfl46. NYPD's efforts have resulted in the apprehension of criminals and in the prevention of terrorist plots that could have resulted in the loss of innumerable lives and cost millions of dollars of property damage. Galati Aff. at TT 16, 17. Disclosure of the details of the NYPD's intelligence and anti-terrorist related investigations would significantly impair the NYPD's ability to protect the public from further terrorist threats, and could result in the loss of many lives and the infliction of widespread damage, Simply put, disclosure of the details of NYPD's operations abets terrorists and signihcantly increases the likelihood of a successful future attack. As discussed below and in the Galati Affidavit, this includes disclosure of whether a particular individual or entity is or has been the subject of an investigation. 4 The Instant Proceeding By letter dated October 23,2012 addressed to NYPD's FOIL Unit (the "FOIL Request"), Petitioner sought from NYPD the following records: (a) All records related to any investigation of Talib W. Abdur-Rashid, between 2006-2012, including the results of those investigations. (b) All records related to Talib W. Abdur-Rashid relied upon by the NYPD that led to any report being filed. (c) All records related to the surveillance of Imam Talib W. Abdur-Rashid by NYPD. (d) All records related and relied upon on [sic] the surveillance of Imam Talib W. Abdur-Rashid used by the NYPD. (e) All directives andlor memoranda sent or received by the NYPD related to surveillance of Imam Talib W. Abdur-Rashid from 2006-2012. ( All records related to any investigation of Talib W, Abdur-Rashid in relation to his activities within the African American Community, between 2006-2012, including the results of those investigations, (g) All records related to any investigation of Imam Talib W. Abdur-Rashid in relation to his civil rights activities, between 2006-2012, including the results of those investigations. (h) All records related to any investigation of Talib'W. Abdur-Rashid in relation to his activities as Amir of The Harlem Shura, between 2006-2012, including the results of those investigations. (i) All records related to any investigation of Talib W. Abdur-Rashid in relation to his activities as Imam of the Mosque of Islamic Brotherhood (130 West I 13th Street, New York, NY 10026), between 2006-2012, including the results of those investigations. (i) All records related to any investigation of the Mosque of Islamic Brotherhood (130 West ll3th Street, New York, NY 10026), between 2006-2012, including the results of those investigations. (k) All records related to the Mosque of Islamic Brotherhood (130 West I l3th Street, New York, NY 10026), relied upon by the NYPD that led to any report being filed. (1) All records related to the surveillance of the Mosque of Islamic Brotherhood (130 West I l3th Street, New York, NY 10026), by the NYPD, 5 (m) All records related and relied upon on [sic] the surveillance of the Mosque of Islamic Brotherhood (130 West l l3th Street, New York, NY 10026), used by the NYPD. (n) All records related to any investigation of the activities of the Mosque of Islamic Brotherhood (130 V/est I l3th Street, New York, NY 10026), between 2006-2012, including the results of those investigations, (o) All directives and/or memoranda sent or received by the NYPD related to surveillance of the Mosque of Islamic Brotherhood (130 West I l3th Street, New York, NY 10026), from 2006-2012. See Verified Petition at I l9 and Exhibit A annexed thereto. By letter dated November 13,2012, NYPI) timely acknowledged receipt of the FOIL Request which it received on November 5, 2012, and, inter alia, stated that it anticipated being able to respond to the FOII- Request within twenty days. See Verified Petition atl2l and Exhibit B annexed thereto. By letters dated December 12,2012 and February 13,2013, NYPD advised Petitioner that it require additional time to respond to the FOIL Request. See Exhibits C and D annexed to the Verified Petition. By letter dated June 28, 2013, NYPD responded to the FOIL Request, denying the Request. In so doing, NYPD did not acknowledge the existence or non-existence of any responsive documents, as to do so would necessarily reveal whether Petitioner and/or the entities with which he is affiliated are or were the subject an investigation or surveillance. Instead, NYPD explained that such documents "if possessed by the NYPD," would be exempt pursuant to the reasons set forth. See Exhibit E to the Verified Petition, at L Petitioner appealed NYPD's denial of their FOII- request by letter dated July 19, 2073, disputing each of the grounds on which he denial was based, See Verified Petition atl23 and Exhibit F annexed thereto. NYPD denied the appeal by letter dated August7,2013. Id. at Exhibit G. Again, rather than revealing whether any responsive documents existed, the Records Access Appeal Officer explained that "in the event that there exist investigatory records that 6 pertain to" Petitioner and the entities set forth in the FOIL Request, any such records would be exempt pursuant to applicable exemptions. Id. at 3 (emphasis added) Petitioner commenced this proceeding on or about November 26,2013. Notably, on at the same time, Samir Hashmi commenced a virtually identical proceeding, Hashmi v. NYPD et al 115560/13, in which petitioner there -- represented by the same attorney as Petitioner here -- sought NYPD records of any investigation or surveillance of him and the group to which he belonged.2 As discussed more fully below, NYPD should not be compelled to confirm or deny the existence of any responsive documents, as to do so would reveal to Petitioner whether he (or the Harlem Shura or Mosque of Islamic Brotherhood) is or has been the subject of an investigation, and disclosure of such knowledge will cause substantial harm to the integrity and efficacy of NYPD's investigations of terrorist activities and could endanger the safety of those working undercover, or who otherwise provide information to the NYPD. Indeed, as discussed in the Galati Affidavit, there currently is a "mass campaign" underway by which individuals are urged to submit FOIL requests to NYPD to ascertain whether they (and the groups to which they belong or with which they are affiliated) are or were the subject of investigation. Galati Aff. at fl 42. Obviously, the disclosure of such information cannot be taken in isolation. As terrorist groups are vigilantly attentive to the documents and information released by NYPD, the cumulative disclosure of such strands of information would provide such groups with the unprecedented insight into NYPD's operations and methodologies, and could endanger the safety of those who might be discovered to be cooperating with NYPD. Thus, disclosure of such 2 Although these proceedings were commenced at the same time and by the same attorney, raise identical issues and bear consecutive index numbers, neither Petitioner listed the other as a "related case" on the Request for Judicial Intervention. 7 information would itself interfere with law enforcement investigations, would reveal non-routine criminal investigative techniques or procedures and could endanger the safety of undercover police offrcers and other confidential sources of investigative information. ARGUMENT POINT I NYPD SHOULD NOT BE REQUIRED TO DISCLOSE WHETHER RESPONSIVE DOCUMENTS EXIST, AS TO DO SO WILL REVEAL INFORMATION THAT WOULD INTERFERE WITH A LAW ENFORCEMENT INVESTIGATION In this proceeding and its companion proceeding, Hashmi v. NYPD, 10156012013, Respondent respectfully requests that the Court recognize and adopt the "Glomar doctrine" which permits federal agencies to neither confirm nor deny the existence of records requested under the federal Freedom of Information Act, Respondents respectfully submit that this result is entirely appropriate and warranted given the similarity of the relevant provisions of FOIA and FOI[,, and the similarity of interests to be protected by the Glomar doctrine. A. FOIL Is Patterned After FOIA The New York Court of Appeals has expressly recognized that the legislative history of FOIL shows that many of New York's FOIL's provisions -- including, significantly, the law enforcement exemption found at Public Officers Law $ 87(2XeXi) -- were "patterned" after FOIA and that, accordingly, federal case law on the scope of the exemption is "instructive." Lesher v, Hltnes, l9 N,Y.3 d 57. 64-65 (2012)(explzrining legislative hislory of FOIA's law enlbroement exemption rnd adopting analysis in similar I'OIL exemption): Iink v. l,efkowitz, 47 N.Y.2d 567,572 (1979); Matter of'l-uck-11-Au,ay Assoc,. L.P. v, Inpire State Dev. Corrr.. 54 A.D,:icl 154, I (t2 (1't Dep't 2008); Matter of Sea Crest Constr. Corp. v, Stubing, S2 A.D.zd 546, 548-49 (2d Dep't 1981. 8 Indeed, courts in New York State -- including the Court of Appeals and Appellate Division courts -- have readily turned to federal case law concerning FOIA in guiding their decisions concerning similar provisions in FOI[,. See. e,9,, Encore College Bookstores. Inc. v. Auxilinrv Servi ceCornration of the State I Inirercifv nf Nerv Ynrk at F'a incrlole 87 N.Y.2d 410 (1995)(reviewing the legislative history of the "substantial competitive injury" exemption found in Pub. Off. Law S87(2)(d), and the analogous nature of equivalent exception in FOIA, to determine scope of exemption); Pittari v. Pirro, 258 A.D,2d 202. 205-06 (2d Dep't 1999)(acloptirig analysis of federal case law under FOIA in holding that an agency could make a generic determination that disclosure under FOIL would cause interference with pending proceeding); Legal Aid Soc')'v. New York City Police Dep't,274 A.D.2d207,214-15 (lst Dep't, lv, denied. 95 N,Y.2d 956 (2000)(sanre); Matter o1't-h'ban Jr-rstice Ctr. v New Yolk Police Dept,, 2010 N,Y. Miso. LliXlS 4258. x2l-22;2010 NY Slip Op 3240011 (Sup. Ct. N,Y. Co. Sept. 10, 2011 )(relying on IrOIA in cenying acoess to portions o1'' NYPD's manual relating to investigation of prostitution, explaining that NYPI)'s 'oundercover techniques and procedures, i.e.,Ilte situations in i.vhich'the very function tcl be perfbrrnecl presurmes secrecy as to the rnanner of its perf'crrmance,"' al'e akin to the mcchanics of an Ir.B,l. "stakeout" arrallgement which is properly exclu<lecJ r-nder ltrOlA)(citing Cox v. [J.S. Dc'p'l o1'.lustice.576 F.2d 1302 (8th Cir. 1978) ancl Hawkes v, Internal Revenue Service , 467 F.2d 787, 795 16th Cir, 1972)); Matter of Pride Tnll Reallv LT C v lrnir:lq 4 Misc.3d 100-s(A);791 N.Y.S.2d 873:2004 NY Slip Op 50665(U), *2-5;2004 N.Y. Mjsc. L[lXIS 995 (Sup. C]t. N.Y. Co, April 28,2004)(noting that cases decidecl uncler IOIA are instrurctive, and citing fcleral cases interpreting similar provision to determine if l';OIL's larry exemption privilege applies to civil law enforcenrent proceedings) 9 B. The Glomar Doctrine Under the well-developed federal case law, an agency responding to a FOIA request may choose to neither conf,rrm nor deny the existence of documents under the appropriate circumstances. The so-called "Glomar" doctrine may properly be invoked where a record confirming the existence of responsive records would itself be exempt under another FOIA exemption. See Phillippi v. CIA,546F.2d 1009 (D,C. Cir. 1976)(case from which the "Glomar doctrine" gains its title)3. As the Second Circuit has explained: To properly employ the Glga_r response to a FOIA request, an agency must "tether" its refusal to respond, Wilner, 2008 U.S. Dist. LEXIS 48750, at t 8 (S.D.N.Y June 25,2008), to one of the nine FOIA exemptions -- in other words, "a government agency may . . , refuse to confirm or deny the existence of certain records . , . if the FOIA exemption would itself preclude the acknowledgment of such documenti." Minier lv. CIAI, 88 F.3d 796, 800 19'h Cir. I 996)(emphasis added), Wilner v. NSA,592lt.3c160, 68 (2d Cir.2009). See Gardels v. CIA,689 F.2d 1100, 1103 (D.C. Cir. 1982)(Glomar response is appropriate when "to confirm or deny the existence of records would cause harm cognizable under FOIA exemption."); ACI-U v. DOD,389 F. Supp,2d547, 558-66 (S,D.N.Y, 2005) (discussing the Glomar standard). As the Second Circuit has observed, "[t]he Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the 'existence or nonexistence of the requested records' in a case in which a plaintiff seeks such records." Wilner, 592 F.3d at 68 (quoting Phillippi, 546 F.2d at 1012). 3 The origins of the Glomar response trace back to the D.C. Circuit Court's decision in Phillippi v, CIA, 546F.2d 1009 (D.C. Cir. 1976),which affirmed CIA's use of the "neither confirm nor deny" response to a FOIA request for records concerning CIA's reported contacts with the media regarding Howard Hughes' ship, the "Hughes Glomar lSxplorer." l0 Under the Glomar doctrine, an agency resisting disclosure of requested records "has the burden of proving the applicability of an exemption," which it may meet "by submitting a detailed affidavit showing that the information logically falls within the claimed exemptions." Wilner, 592 F.3d at 68. See Minier, 88 F.3d at 800 (internal quotation marks and citation omitted). In fact, "when the Agency's position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the Agency's refusal," Wolf v. CIA,473 F.3d 370,374 n.4 (D.C, Cir. 2O07)(internal quotation marks omitted). The agency's afflidavit should "explain [] in as much detail as possible the basis for fthe agency's] claim that it can be required neither to confirm norto deny the existence of the requested records." Phillippi, 546F.2d at 1013. In evaluating an agency's Clonlar response, a court must accord "substantial weight" to the agency's affidavits, "provided fthat] the justifications for nondisclosure are not controverted by contrary evidence in the record or by evidence of . . . bad faith," Wilner, 592 F,3d at 68 (quoting Minier, 88 F.3d at 800). See Tlrrr is v. l-lnited S tafr-c I)onrt nf I Inrnolqnrl Qa^ 2013 t.l.S. Dist, t-tiXlS 91386, at *31i (E.D.N.Y. Jut-tc27.2013) C. The Glomar Doctrine Should be Adonted and Annlied Here As explained above, the Glomar doctrine is properly invoked only where disclosure of the existence or non-existence of a responsive document would itself vitiate an available exemption. F-ederal law enforcement agencies often, but not exclusively, invoke the Glomar doctrine in connection with FOIA Exemptions 1 (when requested information is classified) or 3 (when requested information is protected from disclosure by some other statute). Where, as here, a City agency would seek to invoke the Glomar doctrine, the available exemptions are some\/hat more limited than they would be for a federal agency, as municipal agencies do not have authority to classify documents and so may not invoke a statute that makes il its documents conf,rdential. Accordingly, because classification of categories of information is unavailable to NYPD, here NYPD must rely on other available exemptions found in FOIL, as discussed below. Here, the similarities between the Interference exemptions under FOIL and the federal FOIA, and the substantial principles requiring confidentiality of certain investigations, should easily allow this Court to adopt the Glomar doctrine, which is already a mainstream of federal jurisprudence, l. Public Officers [,aw $ 87(2)(e)(i) - Disclosure Would Interfre With Law Enforcement Investigations Pursuant to Public Offrcers I-aw $ 87(2)(e)(i), an agency may properly deny access to records or portions thereof that are "compiled for law enforcement purposes and which, if disclosed, would . . , interfere with law enforcement investigations . . . ." With this exemption, the New York State legislature codifed what was commonly referred to as the "law enforcement privilege." In Dep't of Investigation of the City of New York, 856 F,2d 481,484-485 (2d Cir. 1988), the Second Circuit explained: [T]he law enforcement privilege [] has been recognized in the absence of a statutory foundation, and [] is largely incorporated into the various state and federal freedom of information acts. The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation. In Commonwealth of Puerto Rico v. United States of America, 490 F.3d 50 (l't Cir.2007), the First Circuit interpreted the analogous law enforcement provision in the federal Freedom of Information Act, upon which FOIL was modeled. The Court saw it appropriate to extend the privilege previously recognized for "confidential government surveillance information," and extended it to "law enforcement techniques and procedures." Commonwealth l2 of Puerto Rico, 490 F .3d at 62 (citing Cintol 818 F,2d 980, 1002 (lst Cir. 1987)). The Circuit Court held that the justihcation in Cintolo applied similarly to the Federal Bureau of Investigation ("FBI") information regarding techniques and protocols of investigations into FBI employees' activities since their disclosure would jeopardize future surveillance operations. Id at 64. The Court reasoned that: Other circuits have explicitly acknowledged a broader privilege for law enforcement materials. The D.C, Circuit has explained that the privilege for investigatory materials is "rooted in common sense as well as common law," noting that "law enforcement operations cannot be effective if conducted in full public view" and that the public has an interest in "minimizing disclosure of documents that would tend to reveal law enforcement investigative techniques or sources. Black v, Sheraton Corp of Am., 184 U.S. App. D.C.46 (D,C. Cir. 1977). Commonwealth of Puerto Rico.490 F.3d at62-63. Courts have recognized that invocation of the Glomar doctrine may be especially appropriate where information is requested regarding surveillance activities, as confirming or denying the existence of particular records of surveillance would likely indicate that a certain person, group or location was or was not subject to surveillance, thus permitting individuals to evade detection. This common sense conclusion stems from the paramount need for secrecy of surveillance in order to obtain useful intelligence information. See Arabian Shield Development Co. v. CIA,1999 tI.S. Disr, LEXIS 2319. at +9 (N.l). '['ex. Ieb.26, 1999) (holding CIA properly refused to confirm or deny whether it "has collected intelligence regarding specific individuals or corporations, or has an intelligence interest or a facility in a particular location."), af'd, 208 F.3d 1007. qqt_denj._d,5:il LJ.S, fJ72 (2000); Wilner, 592 F.3d at 75 (approving Glomar response concerning request for documents that would reveal subjects of investigation); Gordon v. FBI, 388 F, Supp. 2d 1028, 1037 (NLD. Cal. 2005)("Rcquirin-e the government to reveal whether a particular person is on the rvatch lists rvould cnable crirninal organizations to cilcnmvent the t3 pllrpose of' the rv,rt"ch lists by determining in rdvurce which ol- their members may be questioncd.") Earth Pledge Found v. CIA, 988 I'-. Supp. 623, 626 (S,D,N.Y, 1996) (upholding Glomar response refusing to confirm or deny the existence of a CIA field station); affd 128 F.3d 788 (2d Cir. 1997); Daily Orange Corp. v. CIA, 532 F. Supp. 122, 124-26 (N.D.N.Y. 1982)(upholding Glomar response refusing to confirm or deny covert activities at a university). Alth<ngh thc Glonrar doctrinc was not at issue. the Courl of Appeals fbr the District ol'Colunrbia discussed at length thc need 1o nraintain seoreoy with respect to sclurces and methods of intel li gencc inlormation: As the Supreme Couft said in Sims ICIA v. Sims,47l U.S. 159 (1985] "[al foreign government can learn a great deal about the Agency's activities by knowing the public sources of information that interest the Agency." Sims, 471 U.S. at 176-77. This Court has established that in considering the potential harm arising from disclosure of a source or method, "'we must take into account . . . that each individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance itself."' Gardels v. CIA, 689 F .2d I 100, I 106 (D.C. Cir. 1982)(quoting Flalperin v. CIA, 203 U.S, App. D,C. 110,629 F.2d 144, 150 (D.C. Cir, 1980)). As the Director of Central Intelligence attested to the District Court: Disclosure [of intelligence methodsl would directly permit hostile governments to either neutralize fthe disclosed methods] or utilize them as a vehicle for disinformation. Hostile intelligence services and governments are not omnipotent; they cannot watch all potential sources and guard against all possible methods of collection. For example, the procedure of monitoring international telecommunications is one of the most simple intelligence collection methods, but its superb utility stems from the sole fact that hostile powers do not know which communications are seized and which channels are open to compromise. Therefore, protection of the fact of CIA use of even the simplest methods in certain situations keeps this Nation's adversaries guessing as to the goals of United States intelligence activities and the means of carrying them out. l4 Fitzsibbon v. clA. 9l I I',.2c 7-s-5. 763 (D.C. Cir 1990). Such conrnlon sense reasoning is equally applicable wlien the NYPI) is asked to reveal inlonation that would confirm or deny that a particr-rlar-incliviclLral or er-rtity is ol was the sub.ject ol'r telroristn-related investigation, The legitimacy of this concern was expressly recognized by the Second Circuit in the recent case involving the requested disclosure of the NYPD's documents relating to its efforts to detect and prevent potential terrorist threats at the 2004 Republican National Convention, fnding even the redacted documents contain some information that could disclose the identity of an NYPD undercover off,tcer. Pulling any individual 'thread' of an undercover operation may unravel the entire 'fabric' that could lead to identifying an undercover officer, This could present a risk to the safety and effectiveness of that officer and would likely provide additional information about how the NYPD infiltrates organizations. thereby impeding future investigations. Dinler v. City of New York, 607 F.3d 923,944 (2d Cir. 2010), More recently, the Second Circuit similarly upheld the CIA's ability to withhold documents relating to certain CIA activities under FOIA's similar law enforcement exemption: And even if the redacted information seems lnnocuous in the context of what is already known by the public, "fmlinor details of intelligence information may reveal more information than their apparent insignificance suggests because, much like a piece of jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself." Wilner v, NSA,5L)2 F.3d 60, 73 (2d Cir. 2009) (alterations and internal quotation marks omitted); see also CIA v. Sims,471 U,S. 159, 178 (1985); ACLU v. U.S. Dep't of Defense, 628 F.3d 612, 625 (D.C.Cir. 2011). Again, it is both logical and plausible that disclosure of the redacted information would jeopardize the CIA's ability to conduct its intelligence operations and work with foreign intelligence liaison partners, ACLU v. Dep't of Justice,6tll F.3d 61 (2dCir.2012) The operational integrity of NYPD's intelligence program is dependent on its ability to keep confidential the methodologies used to train, deploy, manage and communicate I5 with law enforcement personnel and to safeguard information regarding the program's capabilities, size and scope, This information includes, but is not limited to a. The persons, groups, or organizations about whom information is being or has been obtained; b. locations where information gathering personnel are or have been deployed, either inside New York City or elsewhere;; a, Information that would be revealing of tradecraft techniques, including but not limited to, unique training to the Intelligence Bureau and how undercover officers or informants travel or communicate; b. Information describing how undercover ofhcers or informants establish their bona fides; and The Intelligence Bureau's resources and capabilities. c Galati Aff. at jl22 The release of information that provide direct or indirect information concerning sources and/or methodologies would severely compromise the intelligence capabilities of the NYPD. Disclosure of such information, even if redacted, would allow an individual bent on unlawful activity to prepare "a roadmap of investigatory operations, decisions, techniques and information that would enable every group to anticipate investigative tactics and activities, and undermine current and future investigations." Galati Aff. at fl 24. lndeecl, as Clhief Galati notes: The NYI'}D Intelligence Bureau is well-aware that individuals and organizations that have considered criminal acts against New York City, inoluding acts of terrorism, monitor the capabilities, strategies, and operations tactics of the NYPD and its Intelligence Bureau with the goal of developing counter-measures which will allow for their criminal objectives to be achieved. Organizalions and individuals that have considered operations against New York City, including terrorist operations, carefully watch what NYPI) does and what it says, and carefully consider what any information disclosed by NYPD would communicate to them regarding our capabilities, strategies and operational tactics, l6 Id. at flfl 19,20. These statements confirm the concern recognized by the United States Supreme Court regarding the knowledge to be obtained by review of information disclosed by law enforcement, and gives credence to the admonition that in assessing the potential harm arising from disclosure of intelligence information, "'we must take into account . . . that each individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance itself."' Gardels, 689 F,2d at I106. The fact that a particular investigation may have concluded also does not support disclosure. In Lesher v. FI)inos. lq N.Y.3d 57^68 (2012). the Curt of'Appeals reoognized that the interference exernptiou usually ccases to apply "after cnforcement investigations and any ensuing .judicial procecdings have rur.r their' oourse," IJ<lwever, it also acknowledged that the exemption might still applr in a criminal nratter wlrere the prosecution has been completed, where "the prospecf that clisclosLu'e nright oompromise a relatecl case." Thus, the passage o1'time would not vitiate the applicability of the exemption. In Deluca v. New York City Police Department, 261 A,D.2d 140 (l't Dep't 1999), the Appellate Division permitted NYPD to withhold documents relating to a shooting, finding that disclosure might interfere with an open investigation, In so doing, the Court noted the interview of the comatose victim, should he ever regain consciousness, might provide infonnation "that may provide r basis flr further investigation along lines of inquriry not heretofore pursuecl." 261 A.D.zd at l4l, 'l'he Court spccifcally fbr.rnd lault with the lower court's assumption that such an intervielv "wcluld nclt give rise to such new inlilrrnation and would be the end of the invc-stigation. thereby terminating any threat of "interference" with a law enfrrcement irrvestigation." Id. See also Ofzv. United States Dep't of Health & Human Servs.. 70 F.3d 729, 733 (2d Cir. 1995) (noting that the actual existence of a crime, the status of the l7 investigation, and the passage of time are all irrelevant to the applicability of FOIA exemption relating to disclosure of confidential sources). NYPD's efforts rely not only on the investigation of current activities, but on intelligence gathered from activities and events that have occurred in the past. Thus, there exists the very real possibility that intelligence information gathered currently or in the past might provicle NYPD with a basis for fulther investigation along aventtes not previously pursued. As Commissioner Galati explains, NYPD's investigations of potential unlawful activity may be discontinued without an arrest or prosecution for a variety of reasons, however the subject continues to be a person of investigative interest, Galati Aff. at nn 45-47 . Thus, NYPD intelligence counter-terrorism investigations that are discontinued without a prosecution should not be viewed as concluded and no longer confidential, as each investigation and each piece of information learned during the course of that investigation may be significant to other ongoing and future counter-terrorism investigations. The need for confidentiality is no less and no different than if the investigation had not been discontinued, Revealing NYPD's interest or non-interest in a subject could compromise the value of any information gathered to date and jeopardize NYPD's current investigative efforts. Thus, disclosing whether a person or group is or was the subject of investigation would interfere with those ongoing investigations, as it could compromise NYPD's efforts and render them ineffective. As this Court has recognized, "Even thoLrgh countetterrorism and other intelligerroe activities do not culminatc in prosecutions. these investigations, nonetheless, should be exen-rpt as responclents' current ancl past investigations provicle the NYI'D with a 'basis f'or further investigation along lines of incluiry not heretofore pursued."' Asian American Legal Defnse l8 and Education Funcl v. NYPI) ,41 Misc. 3cl 471,477 (Sup. Ct. N,Y. Co..2013)(Hunter. .I.)a(quoting Deluca, 689 N.Y.S,2d at 488). Frorn the f'oregoing, it is cvident that Respondent's clesire to withhold information that rvould cither confrm or deny the exstcnce oJ' responsivc recot'ds -- as would be the inevitable result rvere it required to respond in any cllher manrler to Petiticlner's FOIL request -- would provide invaluable information about intelligence operations to potential lawbreakers that would help them avoid detection, arrest and prosecution. As disclosure of such information would interfere with law enforcement investigations, Respondents' assertion of this response is entirely proper as it is clearly tethered to the exemption set forth in Public Officers Law $ 87(2)(eXi), 2. Public Officers Law $ 87(2)(e)(iv) - Disclosure Would Reveal Non-Routine Criminal Investigative Techniques Or Procedures Pursuant to Public Officers Law $87(2)(e)(iv), an agency may withhold access to records which, if disclosed, "would reveal criminal investigative techniques or procedures, except routine techniques and procedures." The leading case on this exemption is Matter of F'ink v. Lefkowitz,47 N.Y.2d 561 (1979). which involved a request for access to amanual prepared by a special prosecutor that investigated nursing homes. There, the Court of Appeals held that: The purpose of this exemption is obvious. Effective law enforcement demands that violators of the law not be apprised the nonroutine procedures by which an agency obtains its information (see Frankel v. Securities & Exch. Comm.,460 F-,2d 813,817,cert. den., 409 tJ.S, 889). However benefrcial its thrust, the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution. a Although a Notice of Appeal was filed in this proceeding, the appeal has not yet been perfected. t9 47 N,Y.Zd at 572. See Y Stats Police. 187 A.D.2d 919 ,920-21 (3d Dep't 1992) ("The purpose of the exemption provided by Public Officers Law $ 87(2XeXiv) is to prevent violators of the law from being apprised of nonroutine procedures by which law enforcement officials gather information,"). Thus, "The Freedom of Information Law was not enacted to furnish the safecracker with the combination to the safe." Fink, 47 N.Y.2d at 573. As the Court of Appeals explained, "lndicative, but not necessarily dispositive, of whether investigative techniques are nonroutine is whether disclosure of those procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by flaw enforcement] personnel." Fink, 47 N.Y.2d ar. 573 (citations omitted), Thus, "[e]ven though a particular procedure may be 'time-tested', it may nevertheless be nonroutine." Spencer. 187 A.D2d at921 (citing Fink, 47 N.Y.2d a|572,573). In applying these criteria, the Third f)epartment found that records relating to the method by which the respondent police department gathered information about petitioner and his accomplices was exempt, "because the disclosure of such information would enable future violators of the law to tailor their conduct to avoid detection by law enforcement personnel." Spencer, 187 A.D.2d aI92l. ln Y N ('i v. I- bcrtics ljnion r,. N.Y Police l)en'l- 2009 N.Y. Misc. [,HXIS (l 2542 (Sup. Clt.. N,Y. Co. .Tulre 26,2009), petitioners sought disclosure of documents relating t<l NYPD's Lower Manhattrn Sccurity Initiative ("l,MSI"), designed to prcvent and defend against terrorist activity in lower Mrnhrttan. fhere. petitionet sought infbnnation "involvitrg the operational details of the LMSI" snch rs the types of inf'ormation to be collected and how the infbnnation will be usecl. shared and stored and for how long." NYPD largely denied the request. arguing that 20 disclosure of such details about the development of the system and how it works would limit its effectiveness and increase the risk of terrorist acts in lower Manhattan. . . and that disclosure of this information, as well as the disclosure of any assessments which have been made about the LMSI or about a similar system used in London, would provide terrorists with insight into how the system works and how detection and surveillance by the LMSI may be avoided. 2009 N.Y. Misc. I-EXIS 2542, at * l0-11. Finding the NYPD's argument persuasive, the Court denied access to documents "which show or discuss the LMSI's operational details, such as the types of information to be collected and how the information will be used, shared and stored and for how long." Id, at t 11-12. Similarly, in Matter of Urban Justice Ctr. v New York Police Dept., 2010 N.Y. Misc. LEXIS 4258,2010 NY Slip Op 324001J (Sup. Ct. N.Y, Co. Sept. l0,20ll), the Court denied access to a portion of the NYPD's confidential Organized Crime Control Bureau manual regarding techniques use in NYPI)'s undercover investigations of prostitution, In so doing, the Court held that "undercover operations, even though widely used and time-tested, ae nevertheless non-routine. Indeed, detailed specialized methods of conducting an investigation into the activities of a specialized area of criminal enforcement in which, as here, voluntary compliance with the law has been less than exemplary, have been held "non-routine." Thus, the Court held that disclosure would "raise a substantial likelihood that persons engaged in prostitution-related activity would be alert to these techniques and would deliberately tailor their conduct so as to avoid detection or prosecution, thus, seriously compromising NYPD's future undercover investi gations. " Among the records requested by Petitioner in the case at bar are documents concerning any surveillance of him, the Harlem Shura or Mosque of Islamic Brotherhood. Surveillance, however, is a non-routine investigative technique which is exempt from disclosure pursuanttoPublicOfficersI-aw$87(2XeXiv)'SeeAr!.ap- 2t Education lund,4l Misc.3d at 47tl ("t)nclcrcovet'opcratic)ns. even though iviclely used anc] time-tcsted. have bccn adjudgccl non-r'ontinc"), As Chief Galati has described, were a particular individual or group learn that they are or were the subject of investigation, they might alter their conduct and "take counter-measurcs to avoid detection of illegal activity, or to otherwise guard its conduct so as to shield it from detection, such as by altering their patterns of behavior, locations of illicit conduct or methods of operation or identity of criminal associates." Galati Aff. at fl 25. See id. aI fl 7. Additionally, such information would provide "a roadmap of investigatory operations, decisions, techniques and information that would enable every group" to undermine current and future investigations. Id. atjl24. Also, if they were to leamthatthey were not the subject of disclosure, they might continue to more freely and intensely engage in criminal activity, begin to engage in criminal activity, or be more susceptible to being recruited to engage in such activity. Id. aT,l26. Indeed, this prooeeding should not be viewed in isolation. Indeed, a companion case, Abdur-Rashid v, NYPD, 101559/13, was brought simultaneously with this one, in which the petitioner there, too, sought documents regarding NYPD's alleged surveillance of him and the entities with which he is affiliated. Moreover, the American Asian Legal Defense and Education Fund has engaged in an active and ongoing "mass Freedom of information Law campaign" encouraging citizens (mostly its constituency of Muslim Americans), to submit similar FOIL requesls. Galati Aff. at I 42, and Exhibits A an B annexed thereto. Were NYPD required to confirm or deny the existence of responsive records in these cases -- thereby necessarily divulging whether Petitioner and their organizalions are (or were) the subject of investigations -- there would be no basis on which to deny other requestors the same information about themselves or other organizations. 22 If NYPD were required to affirmatively or negatively respond to each FOIL request seeking to determine the scope and targets of its surveillance operations, crucial surveillance strategies could not remain confidential, and would thus lose all value, See. e,g., Bassiouni v. CIA,3g2F.3d244,246 (7th Cir, 2004). Indeed, as courts have recognized, any information available to a FOIL or FOIA requester is similarly available to "North Korea's secret police and Iran's counterintelligence service too." Id. These and "other hostile entities," id., including agents of al Qaeda and its affiliates, would no doubt be greatly interested in the opportunity to have NYPD ofhcially and publicly confirm or deny whether a particular person or entity is or was the subject of NYPD interest, investigation and/or surveillance. It is for this reason that, according to the Seventh Circuit, "[e]very ffederal] appellate court to address the issue has held that FOIA permits the fintelligence agencies] to make a 'Glomar response' when it fears that inferences from . . . selective disclosure could reveal classified sources or methods of obtaining foreign intelligence." Id. In certain circumstances involving surveillance, "the only way to keep secrets is to maintain silence uniformly." Id, This is because providing assurances that a particular person or area is not being targeted becomes unworkable and would effectively disclose surveillance sources and methods to a trained eye as to the scope and any inherent limitations of the NYPI)'s activities. In short, if NYPD were required to confirm or deny the existence of responsive records in this case and in response to similar requests, the impact on NYPD investigations and its counter-terrorism operations -- where "the veri- function to be pcrformed presumes secrecy as tcr the manner of its perfbnrance." Matter of Urban Justice Ctr. ,2010 N.Y. Misc. LEXIS 4258, at *30 -- would be devastating. Indeecl. such clisclclsure rvould severely undermine NYPD's efforls and diminish. il'not uttc:rly elirninate, the e f'licacy of'such investigations, thereby immeasurably 23 implovirig the prospect of'another suc,cessfl terrolist attack on the City. Thus, in deciding this case, the Courl should bear in mind the admonition of the Court of Appeals, when it stated that the purpose of the Freedom of Information Law is not to enable persons to use agency records to fiustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution. Fink, 47 N,Y,2d aT 572. See Pittari, 258 A.D.2d at204, As NYPD's objection to either confirming or denying the existence of responsive records is firmly tethered to an applicable FOIL exemption, its assertion of a Glomar response should be upheld. 3. Public Officers Law $ 87(2X0 - Disclosure Could Endanl'er ife and Safefv of Numerous Peonle the L Under Public Officers l-aw $ 87(2)(, an agency may deny access to records or to portions thereof where the information, if disclosed, could endanger the life or safety of any person. To properly invoke this exemption, as agency is "not required to prove that a danger to a person's life or safety will occur if the information is made public." Stronza v. Hoke, 148 A.D.2d 900, 900-01 (3d Dep't), lv denied. 74 N.Y.2d 6l I (1989), lnstead "there need only be a possibility that such inf-ormation would endanger the lives or safety of individuals." Id.; see also. eo Rall,mv v Norv Ynrl l-i1r Prrlir.o l)orrt 87 A I),3d 874, 875 (l't Dep't 2011) (holcing "agency in cluestion need only clernonslrale "a possibility cll'endarngerIrrrcnt.]" in order to invoke this exemption," ancl thrt clisclosurc of pelsons rvho spol<e r.vith policc during investigation, but w'ho never bccrmc tc'stif\,ig r,vilncsses was excnlpl. ancl that safty concenls were established because once nirnc ws clisclosec. lurvone sy,'mpathetic to the arrestee ccluld go orl the Internet and learn where the pcrson rvorked and lived): Johnson v. New York Ciq Police Dep't, 257 A.D.2d 343,348-49 (lst Dep't) (holding that certain information, by its very nature, could 24 endanger the lives or safety of individuals if it were to be released in an unredacted form), appeal dismissed, 94 N.Y.2d 791 (1999). Nor does the agency need to provide a detailed description of the contents of such documents, because disclosing the underlying facts contained in the subject records would "effectively subvert the purpose of fthe exemption]." Matter of Nalo v. Sullivan,l25 A.D.2d 3ll, 312 (2d Dep't 1986), lv denied 69 N,Y.2d 612 (1987). See Lesher, 19 N,Y.3d at 67 (upholding agency's ability to identili generic kinds o1'docrunents for which law enforcement exemption is clairned. and the generic risks posed by disclosutc of such clocuments). f. Cirale v. 80 Pine Street Corp.,35 N.Y.2d l13, l19 (1974)("A description of the material sought, the purpose for which it was gathered and other similar considerations will usually provide a sufficient basis upon which the court may determine whether the assertion of governmental privilege is warranted"), There can be no serious doubt here that disclosure of whether Petitioner, the Harlem Shura or the Mosque of Islamic Brotherhood are or were the subject of investigations andlor surveillance could impair the lives and safety of others. This includes the lives of the members of the law enforcement community, undercover officers and confidential informants, members of the public who are cooperating in the NYPD's investigation and anti-terrorism efforts, as well as members of the public at large were would-be terrorists given the ability to evade detection andlor capture. Such safety concerns are consistently upheld as legitimate bases for withholding responsive records. For example, in llurberti. Girvin &. Ferla:z.zc P.C. v. New York State Div. of Stale Police , 218 A.lD.2d 494. 4L)q (3d Dep't 1996), the Court fbund that disclosure of the troop, zone, and station assignrnents of'police ol'f-rcers coulcl endanger the lil and safety ol those offcers and was, tlrerefore. ptopcrly withheld). ,SSg Setl'Cters_y*l3laq!, 278 A.D.2d 10,13 (1st 25 Dep't 2000)(',there is lio <oubt that revealing lhe identity of' the undercover oI1-tcers would seriously.ieopatdize their safet.v-), q_v_ffU.ld-p-n !g grounds. Ia-ttley v. N.Y.-eitJ Police Dep't, 96 N,Y.2d 873 (2001). In Mattet of Urban Ju$_tice Ctr.,2010 N.Y. Misc, LIXIS 4258. the Court denied access to p<lrtions of' NYPD's manual relating to investigation of prostituticln, finding that disclosure. "could allow potential perpetrators to disccrn the factors ancl signals which could identify the ofcer as an uuicleroover" ancl, therelbre, posecl u,t unr.urnnable danger to the salty of unclercover offi cers. In an analogoLls context. the need to safeguard the safe and secure operations of the trrisons is well-establishecl. ln Flow*ets":*SUl,[iyAn, 149 A.D,zd287 (2d Dep't 1989), the Court addressed a IrOIL request l'or sper:ifcations and other data relating to the electrical and security transmissic>n systenrs o1'Sing Sing Correctional lracility. In f,rnding that such records were exernpt fiom disclosut'c'. the Court lbuncl: It seems clear that disclosure of details regarding the electrical, security and transmission systems of Sing Sing Correctional Facility might impair the effectiveness of these systems and compromise the safe and successful operation of the prison. These risks are magnified when we consider the fact that disclosure is sought by inmates. Suppression of the documentation sought by the petitioners, to the extent that it exists, was, therefore, consonant with the statutory exemption which shelters from disclosure information which could endanger the life or safety of another. 149 A.D.2d at 295. See also BeYah v. Goord. 309 A.D.zd 1049 (3'd Dep't 2003) (employee staffing records that would reveal the postings of correction officers throughout the facility properly withheld from disclosure); Boddie v. Goord,251 A.D,2d 799 (3d Dep't) (applying exemption to provisions of manual concerning the supervision and security of inmates), lv denied, 92 N.Y.2d Sl0 (1998); Stronza, 148 A.D.2d 900 (applying exemption to portions of certain program and security assessment summaries in possession of conectional facility). 26 In invM Slip Op 321611J (Sup. (:1, N.Y blLreprints of' M1'A's subways. fo I I or,ving c-xtcndcd cuote : ti 'l lan Auth..20l0 N.\'. Misc. LEXISi 3829.2010 NY Oo.. Aug. 10.2010), thc IrOIL reqr.rest sought maps and Thc Court's reasoning in denying this request rnerits the The NYCTA subway system is highly vulnerable to terrorist attack and the extent of such vulnerability has been accentuated by a number of failed plots in New York City in recent years. Respondent has set forth the kind of information that would be available if the NYCTA subway station blueprints were made available to petitioner or other members of the public and how such disclosure could have potentially devastating effect by making available to potential tclrorists highly sensitive material concerning structural details of the stations, the location of electrical, computer and other equipment and other information which would enhance the ability of such terrorist to maximize the damage to the NYCTA subway system and increase the loss of lives. Moreover, respondent has made clear that the danger posed to the life and safety of riders and NYCTA employees by the disclosure of the materials sought is more than just speculative, but rather, based upon the number of terrorist attacks that have targeted transit systems around the world in recent years, is a very real and potential danger that far outweighs petitioner's right to access. 2010 N.Y. Misc. l,t:XlS 3829, rt * I3-14, As explained by Chief Galati, there is no doubt that disclosing whether Petitioner, the Harlem Shura or the Mosque of Islamic Brotherhood are or were the subject of investigations andlor surveillance would likely oompromise the salty and operational value of sources o1 information used in NYPI)'s counter-terrorism investigations, as the subjects and their associates most certainly would be trying to identify who is or was providing information about them. In so doing, they would be scrutinizing every person with whom they came in contact. Not only would this endanger any actual sources of information, it would endanger persons who were not sources, but about whom suspicion was raised. , . . Not only would such disclosure undermine the integrity and effectiveness of an ongoing or future investigation, it easily could risk the lives and safety of those working for or in cooperation with the NYPD or were suspected of doing so, 21 Thus, the inappropriate sharing of such information could endanger the lives and safety of the people who are identified either as undercover offcers or confdential informants, including members of the public who voluntarily provide lead and other information to the NYPD Intelligence Bureau with an expectation of conhdentiality in return. Also, it must be kept in mind that the lives and safety of the friends and families of sources, both in the United States and overseas, could also be endangered. Galati Aff. at II32, 33. Additionally, such disclosure would jeopardize the ability of the NYPD attract, deploy, and retain sources of information by raising serious doubts about its ability to protect their confidentiality." Galati Aff, at U 34. NYPD's inability to protect conhdentiality also will have a detrimental impact on NYPD's relationship with other law enforcement agencies, which may become reluctant to share, and may actually withhold, vital information from NYPD, Such consequences are simply unacceptable "in the post-September llth world where sharing information between government agencies is critical to maintaining the safety and security of the United States." Id. at t[ 36, The compelling public interest in protecting the lives and safety of the people of New York demands that the NYPD not be required to specify which individual or organization is or has been the subject of ongoing or contemplated investigative activity. As NYPD's opposition to providing an official confirmation or denial of the existence of responsive documents (which necessarily would reveal whether Petitioner, the Harlem Shura or the Mosque of Islamic Brotherhood are or were the subject of investigations and/or surveillance) is tethered to the "life or safety" exemption found in Public Officers Law $ 87(2)(, its assertion of the Glomar doctrine is entirely proper. L 4 The Court Should Defer fn NVPD The NYPD is responsible for the protection of New York City and has a special need to prevent such disastrous events from occurring again. In fact, the City Charter imposes this great responsibility on the police force when it directs that it "shall be their duty to preserve the public peace, prevent crime, [and] detect and arrest offenders". New York City Charter $ 435 (a). Through the years, Manhattan has repeatedly been the target of terrorist attacks. These include the 1993 World Trade Center bombing, the 1993 plot to bomb several landmarks including 26 Federal Plaza,Ihe 1994 attack of Yeshiva students gunned down on the Brooklyn Bridge, the 2001 attack and destruction of the World Trade Center during which more than 2000 people were killed, the 2003 plot to destroy the Brooklyn Bridge, and the 2004 plot to attack financial targets including the New York Stock Exchange and the Citicorp Building, Other terrorthreats are described more fully by Chief Galati (atTT 16 and 17). The Senate Intelligence Committee has put together a summary of terrorist plots stopped and subjects arrested between 2009 and 2012. See http://www.feinstein.senate.gov/public/index,cfm/files/serve?File id:adec6e l0-68ed-4413- 8934-3623edc62cef fhe prevention of terrorist acts against the people of New York is of paramount importance and overrides the public's interest in disclosure of the requested records or in obtaining knowledge as to whether a particular individual or group is or was the subject of investigative interest. T'he NYPD's expertise in this area is unparalleled and, given the high stakes and severe consequences at issue here, great deference should be given to its judgment in what constitutes a threat to New York City's security. In Cassid), v. Chertoff, 471F.3d 67 (2d Cir. 2006), the Second Circuit recognized an enhanced special need to defer to law enforcement's expertise and opinion where the prevention of terrorist attack is at stake: 29 It is clear to the Court that the prevention o1'terrorist attacks on large vessels engaged in mass transportation and determined by the Coast Guard to be at heightened risk of attack constitutes a "special need." Preventing or deterring large-scale terrorist attacks present problems that are distinct from standard law enforcement needs and indeed go well beyond them. See. MacWade, 460 F'3d at 272 ("fPlreventing a terrorist from bombing the subways constitutes a special need that is distinct from ordinary post hoc criminal investigation."); Nicholas, 430 F'.3d at 661 (explaining that "[w]hat unifies fthe Supreme Court's "special needs"] cases, despite their varied contexts, is that in each instance, the Court found that the suspicionless-search regime at issue served some special need distinct from normal law-enforcement needs"). There is also an obvious nexus between protecting a ferry and guarding against the threat of terrorism through minimally intrusive searches of vehicles and carry-on baggage. Indeed, as in the case of airline hijacking, a large ferry commandeered by a terrorist becomes a weapon, or as in the case of subway bombing, the ferry becomes a death trap, Either way, the government has a "special need" to prevent such potentially disastrous situations from developing, and courts have readily aoknowledged the special government need in protecting citizens in the mass transportation context. See. e.g., Skinner, 489 LJ.S. at 608-13 f(testing railroad employees for drugs and alcohol when safty incidents occur); MacWade, 460 F.3d at 271-72; Uniled States v. l'lartwell,436 F.3d 174, 179 (3d Cir, 2006) (Alito, .T.) (pre-boarding search of airline passengers' carcy- I Inited States v. on baggage); Edwards, 498 F.2d at 500 (same); Davis, 482 r-.2d 893, 910 19tr' Cir. lg73) (same). Cassidy, 471 F .3d at 82. The need for deference also was clearly recognized in NYCLU v. NYPD,2009 N.Y. Misc. t.tlxIS 2542 (Sup. Ct.. N.Y, Co. .Tune 2(r, 2009). In upholding NYPD's denial of disclosure of docurnents relaling 1o NYPI)'s Lor,r,cr N4anhaltan Scculit-v" hiitiative ("l,MSI"), designecl to prevent and cleJlid against lerrorisl activity in lor.ver Manhattan, the Court found that 'l'here is tiotring in the pctitioner's papers "vhich provicles any basis for the coult to qucstion the goocl fith ancl rersottablottess ol'the respondents' juclgtnent and evalurtion of' the danger posecl by disclosing the specilic infbtra1ion sor.tghl by tlie petitioner about tlie s),stcm's opc-rational details. as well as disolosing the assessmc-nts which l-rrve bce n nlade about the system. See American-Arab m v. tI.S Llo_ru_l-a_ru!_,!q!-l-ty. 516 []. Supp,2cl 83, 89 (D.D,C, 2001). See ty Stuclies v. LJ,S, D.O.J., 331 l.3d 't of also (lentcr fbr Nati 30 918,927 (t).C. (lir 200-i. Although. as cliscussecl errlier. the City has disclosccl sonrc iul'ormation abor,rt the LIvlSI. the respondents have clcarly deterrnined that such limitecl disc losurc does not compronrisc the integrity ancl c1'1cac1, of'the svstetn. By cloing so. the responclents hrvo hardl,v rvarved their right to deterntine rvhat, if'zrny', othel inlormatron may be clisclosed without unclermining the opcration of thc LMSI. 2009 N.Y. Misc. LtiXIS 2542. at +ll, See ACLTJ v. Dep't of Justice, 681 F.3d af 70-71 ("'Recognizing the l'elative conlpetencies ol.the execulive aud judiciary, we believe that it is bad law and bad policy to seconcl-guess the preclictive .juclgurents rnacle by the government's intelligence zrgencies' rcgarding whetl-rel disclosurc <f thc inlormation reclacted liom the OLC menrorancla would pose a threat to natioual secLrrity"Xquoting Wilnor, 592 F.3d at 76)(internal quotation marks omitted). Again. case Iarv cleveloped undct' FOIA is instructive, As noted above, in evaluating an agency's l_qlg response, a court must accord "substantial weight" to the agency's affidavits, "provided lthatl the justifications for nondisclosure are not controverted by contrary evidence in the record or by evidence of . . . bad faith." Minier, 88 F,3d at 800 (internal quotation marks omitted). See l)avis_v._lhlqcl SlAqil)sp:Lqfllclulld_Sci.2013 tJ.S. Dist. I.EXIS 91 386< rt *33 (ll.D,N,Y. Jvne 27 ,201 3). . . , ."[t]he test is not whether the court personally agrees in full with the CIA's evaluation of the danger - rather, the issue is whether on the whole record the Agency's judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the CIA is expert and given by Congress a special role." Gardels v. CIA,689 F.2d 1100, 1105 (D.C. Cir. 1982); see also Military Audit Project, 656 F .2d 724, 738 (D.C. Cir. 1981X"[T]he Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosures of a particular classified record."). Bennett and Neller's accounts easily clear the low hurdles of reasonableness, logic, and plausibility. Their assessments, moreover, are "called into question [neither] by contradictory evidence in the record [n]or by evidence of agency bad faith," Halperin v. CIA,629 l:.2d 144^ 148 (D,C.(lir. 1980), 3l Juclicial Watr:h. Inc. r,. LJ.S, l)ep't tll'Def'ense,857 1". SLrpp,2d44.62 (D,Cl, Cir.2012). As described in the Galati Affidavit, at flfll5-17, New York City has been and continues to be the target of numerous terrorist attacks and plots. The risk of a future attack or plot is realistic, not merely speculative. 'l-he possibility of endangerment facing people, buildings and property is a risk that the NYPD is duty bound to assess and against which it must diligently act, in view of its obligation to protect the public safety of the City of New York, Here, Respondents have explained the substantial grounds on which they believe that disclosure of whether Petitioner, the Harlem Shura or the Mosque of Islamic Brotherhood are or were the subject of investigations andlor surveillance -- a disclosure that would necessarily result from any conf'lrmatory response to Petitioners' F'OIL request, including the affirmative assertion of any exemptions -- would interfere with their investigations and jeopardize national security, reveal non-routine techniques and endanger the lives and safety of numerous people, Such disclosure would impair the elfectiveness of NYPD's counter-terrorism operations and would place New York City at greater risk of attack, as maintaining the confidentiality of the details of its implementation is of paramount importance to the security of New York City. As in NYCLU v. NYPD Petitioner here can offer no rational basis on which to question "the good faith and reasonableness" of NYPD's judgment regarding the consequences of disclosure. Thus, the Court should defer to the NYPD's predictive judgments of foreseeable harm in determining the extent of disclosure of information that affects public safety, * * , > r Although it appears that no court in New York has had occasion to decide the application of the Glomar doctrine in connection with a State court FOIL proceeding, it is clear that there should be no barrier to its adoption here. As described above and in the Galati Affidavit, the grounds for NYPD to decline to disclose whether Petitioner, the Harlem Shura or 32 the Mosque of Islamic Brotherhood are or were the subject of investigative interest and activity, are tethered to existing FOIL exemption, making the Glomar response readily available. In light of the harms which would result from such disclosure, the similarities between the pertinent provisions of FOIL and FOIA (which is frequently refened to in interpreting FOIL) and the similarities of the principles at stake in these statutes, Respondents respectfully submit that there are ample grounds for the Court to allow NYPD to protect its legitimate interests and to invoke the Glomar doctrine. CONCLUSION For the reasons set forth above, Respondents respectfully request that the Court (i) recognize the validity and application of the Glomar response in connection with Petitioner's FOIL Request and not compel Respondents to provide any further response, (ii) deny the Verified Petition in its entirety, and (iii) award them such other and further relief as this Court deems just and proper. Dated: New York, New York February 13,2013 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street, Room 2-l2l New York, N.Y. 10007 (212) 3s 76 By J S t tion Counsel tz 33