New Jersey man's suit against NYPD over surveillance records goes to state's highest court

When Samir Hashmi sued the New York Police Department five years ago for access to records he believed it had kept on him, he did not expect to become a torch bearer for open government.

But on Tuesday, the Paramus native heads to New York State's highest court, the Court of Appeals, in a potentially precedent-setting case that's being closely watched by open-government advocates and media companies.

Hashmi sought records after reading news reports that the NYPD had secretly monitored Muslim houses of worship and businesses in New York and New Jersey, as well as student groups at 16 Northeast colleges, including Rutgers University, where Hashmi was a student.

"I’m no less American than anyone else," said Hashmi, 29, a lifelong New Jersey resident. "My rights were violated and I was surveilled for expressing the First Amendment on campus. I want to make sure that Muslims feel safe to express themselves on college campuses and everywhere else in this county."

Other students requested records and were told that none existed. But the NYPD informed Hashmi that it could "neither confirm nor deny" the existence of such records — a response an appellate court ruled was justified.

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Omar T. Mohammedi, Hashmi's lawyer, said the NYPD's reply was the first time he knows of that a local agency attempted to use the so-called federal Glomar response to deny a records request. But it wasn't the last; since then, two states have incorporated the "neither confirm nor deny" reply as policy — including New Jersey.

Hashmi's appeal represents two combined cases — his own and that of Talib Abdur-Rashid, a Harlem imam who sought records from the NYPD after suspecting he was secretly monitored as a community activist.

'This needs to happen'

Like other Muslim Americans, Hashmi was troubled by news reports about wide-reaching surveillance — activities that law enforcement officials in New Jersey had blasted as unauthorized and damaging during a public spat with New York police.

In a series of stories starting in 2011, The Associated Press revealed that the NYPD mapped ethnic communities, took photographs of worshipers and license plates outside mosques and used informants who were known as "mosque crawlers" to listen in on sermons and conversations.

At schools, including Yale, Columbia and the University of Pennsylvania, Muslim students were monitored daily online through their websites, blogs and emails. Undercover officers also had a "safe house" in an apartment near Rutgers' New Brunswick campus, where they had been monitoring students, the AP found.

Officers also wrote reports about meetings of the Muslim Student Association, a club that Hashmi had joined while at Rutgers to raise awareness about Islam through interfaith outreach and charity.

Critics said the surveillance made people afraid to participate in Muslim groups and student clubs, and suspicious of people they don't know.

Hashmi did not withdraw from Muslim-centered activities, but said he grew wary of meeting new people, fearing they could be informants or spies.

His lawsuit was one of several that arose out of the police surveillance scandal. City and police officials under the administration of Mayor Michael Bloomberg maintained that their actions were legal and that they collected information that was publicly available in an effort to learn where terrorists might go to "lie low." But under Bloomberg's successor, Bill de Blasio, the Police Department disbanded the demographics unit responsible for the surveillance. The city of New York also settled two related lawsuits and agreed to reforms.

As he pursued his lawsuit, Hashmi earned a master's degree in business information systems from the New Jersey Institute of Technology. He moved to Marlton and works as a quality assurance consultant. And he has pledged to keep up his legal fight as long as he can.

Hashmi filed his request under New York's Freedom of Information Law. He said he wants his records expunged and to let police know that Americans won't stand for surveillance of nonviolent activity that is protected by the First Amendment.

"I feel determined," he said. "This needs to happen. Even if something goes south, I feel proud of myself and my lawyer for standing up for the Constitution."

'Neither confirm nor deny'

The so-called Glomar response sprang out of a 1970s case over a records request about a ship, the Glomar Explorer, that was involved in an operation to retrieve a sunken Soviet submarine. It was intended to be used only by federal agencies in the interest of national security.

But the NYPD, in Hashmi's case, said it could not confirm the existence of records because doing so could reveal information about targets of counterterrorism surveillance. Mohammedi argued that the New York Legislature does not allow for the Glomar response under that state's Freedom of Information Law.

The NYPD was the first state or local agency to use the Glomar response to deny a public-information request, Mohammedi said. But more are following New York City's lead. In 2013, Indiana authorized the Glomar response through a state statute.

In 2016, a New Jersey state appeals court ruled that government agencies in New Jersey may deny access to public records by saying they can "neither confirm nor deny" their existence.

The lawsuit had been filed by North Jersey Media Group, which publishes The Record and other newspapers, after a reporter sought recordings or transcripts of 911 calls and complaints regarding a Catholic priest who has never been arrested or charged with a crime. The Bergen County Prosecutor's Office said it could neither confirm nor deny that the records existed.

Mohammedi said the county offered a "Glomar-style" response, but it was not the same because the rationale was protecting individual privacy rather than national security.

In New York City, police used the Glomar defense again when it denied records sought by Black Lives Matter activists from the group Millions March NYC. Organizers believe police interfered with their cellphone communications during a 2014 protest.

They requested records related to the department’s use of surveillance technology against activists, but got the Glomar response. They sued in May.

Police in Washington, D.C., have also used the reply to deny requests for surveillance records, including those filed by protesters at President Donald Trump's inauguration in January 2017, said Daniel Bevarly, executive director of the National Freedom of Information Coalition.

Glomar, he said, "offers yet another way for public agencies to deflect their Freedom of Information responsibilities."

Mohammedi said that in Hashmi's case, a ruling in favor of the police could open the door to broader denial of information requests.

"That's a major risk," he said. "You have a steep slope that everyone is trying to lower the standard, where everyone will be able to claim Glomar.

"Glomar was a national security principle for national defense," he said. "That can be a problem, because it will create a wall between the right to know by the public."

Email: adely@northjersey.com