- Associated Press - Thursday, June 2, 2016

NEW YORK (AP) - An appellate court ruled Thursday that the New York Police Department was justified in using a Cold War-era federal legal doctrine to neither confirm nor deny the existence of records related to investigators’ surveillance of two Muslim men that were requested under state open records law.

An attorney for the men, a Rutgers University student and a well-known Harlem imam, had argued that when the police department invoked the Glomar doctrine in responding to Freedom of Information Law, it had extensively claimed an expansive privilege under a blanket exemption that should not apply to the state open records law.

But in a decision handed down Thursday, a panel of judges presiding over the state Supreme Court Appellate Division in Manhattan said the Glomar responses were appropriate in this case because of “heightened law enforcement and public safety concerns.”

“We are all safer because of this ruling, which confirms that the NYPD is not required to reveal the targets of counterterrorism surveillance,” said Nick Paolucci, a spokesman for the city’s Law Department. Omar Mohammedi, the attorney who represented the two men, Samir Hashmi and Talib Abdur-Rashid, did not immediately respond to a request for comment.

Two lower court judges had issued conflicting rulings in lawsuits brought by Hashmi and Abdur-Rashid related to their surveillance after the NYPD responded to 2012 records requests by invoking Glomar.

Their lawsuits were prompted after a series of Pulitzer Prize-winning stories by The Associated Press detailed the ways in which the nation’s largest police department searched for possible terrorists after the Sept. 11 attacks, in part by infiltrating Muslim student groups and putting informants in mosques.

Earlier this year, the city settled lawsuits over the surveillance practices, allowing a civilian lawyer appointed by the mayor to attend meetings about secret investigations.

The NYPD’s intelligence chief, Thomas Galati, wrote in affidavits that requiring the police department to reveal who was under surveillance could harm ongoing investigations and allow would-be extremists to gain sensitive information. The panel of judges found the police department met its burden to prove there was a specific and compelling reason to decline to confirm or deny the existence of the records.

The judges said although the state’s public records law wouldn’t specifically prohibit an agency from invoking the Glomar doctrine, it should submit detailed affidavits to show the information falls within certain exemptions.

Glomar gets its name from a 1976 federal court decision that allowed the CIA to “neither confirm nor deny” whether records existed related to the Hughes Glomar Explorer ship that was used in the recovery of a Soviet nuclear submarine.

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Follow Michael Balsamo on Twitter at http://twitter.com/MikeBalsamo1.

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