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In re Friedman

New York Court of Appeals

November 21, 2017

In the Matter of Jesse Friedman, Appellant,
Kathleen M. Rice, & c., Respondent.

          Ronald L. Kuby, for appellant.

          Judith R. Sternberg, for respondent.

          Reporters Committee for Freedom of the Press, et al.;

          National Association of Criminal Defense Lawyers et al.; District Attorneys Association of the State of New York, amici curiae.


          RIVERA, J.

         On this appeal we clarify the proper interpretation of section 87 (2) (e) (iii) of our State's Freedom of Information Law (Public Officers Law art 6 [FOIL]), under which a government agency may seek to exempt from public inspection those records, or a portion thereof, "compiled for law enforcement purposes and which, if disclosed, would... identify a confidential source or disclose confidential information relating to a criminal investigation" (Public Officers Law § 87 [2] [e] [iii]). We hold that a government agency may rely on this exemption only if the agency establishes (1) that an express promise of confidentiality was made to the source, or (2) that the circumstances of the particular case are such that the confidentiality of the source or information can be reasonably inferred.

         Here, the Second Department applied the wrong standard when it held that the District Attorney of Nassau County properly denied petitioner Jesse Friedman's FOIL request for records relating to his conviction. The court relied on its precedent that identifying information and statements gathered in the course of a police investigation from witnesses who do not testify at trial are presumptively confidential and, as such, are exempt from disclosure under FOIL. No other Appellate Division Department has adopted this interpretation of section 87 (2) (e) (iii). Rather, the other Departments have properly required some express or implied assurance of confidentiality to justify withholding information, including the names or identities of sources. The federal courts have required a similar showing under the federal Freedom of Information Act (FOIA).

         We conclude that the Second Department misinterpreted section 87 (2) (e) (iii), and respondent's denial of petitioner's FOIL request must be analyzed under the proper standard as set forth in this opinion. Therefore, we now reverse the Appellate Division order and remit the matter to Supreme Court.


         This appeal is the latest in petitioner's efforts to overturn his decades-old child sex crime convictions. In this litigation, petitioner seeks information in the control of the Nassau County District Attorney's Office, including the victim statements and other information gathered during police interviews of child witnesses. Petitioner argues that this material is necessary to establish his claim of actual innocence. Before turning to the legal issues, we briefly summarize the events that led to petitioner's conviction and the procedural history of the matter before us.


         In 1987, then 18-year-old petitioner and his father were arrested on multiple counts of sexual abuse of several children between the ages of 8 and 12. According to the charges contained in the three indictments filed against petitioner, the abuse occurred over five years while the children attended an after-school computer class taught by petitioner's father at their family home. There was no forensic evidence of physical abuse and the prosecution relied heavily on the children's allegations made after questioning by the police, who employed tactics and interview techniques that the District Attorney concedes were "not ideal" and are no longer in use.

         Petitioner's father pleaded guilty to numerous sex crimes in 1988 and died in prison in 1995. A few months after his father's plea, petitioner also pleaded guilty to various sex crimes, and was sentenced to multiple concurrent terms with a maximum range of 6 to 18 years of incarceration. Petitioner did not appeal, and, after serving 13 years of his sentence, was paroled in December 2001.


         Approximately one year after petitioner was paroled, the film "Capturing the Friedmans" was released. The movie suggested that the police had elicited witness statements using investigatory techniques that were unreliable or known to produce false testimony - including, in the case of one witness, hypnosis - and that petitioner was wrongfully convicted and actually innocent. The filmmaker had interviewed many of those involved in the original investigation, including detectives, attorneys, family members, and victims.

         Based on new information petitioner learned from the film, he commenced the first of several state and federal court proceedings. In 2004, petitioner moved unsuccessfully in state court to vacate his conviction. The Appellate Division denied him leave to appeal, and a Judge of this Court dismissed his application for leave to appeal (6 N.Y.3d 894');">6 N.Y.3d 894 [2006]). Petitioner subsequently petitioned for a writ of habeas corpus in federal court, claiming, among other things, that he would not have pleaded guilty if he had known the details of the flawed investigatory procedures used to build the case against him. Petitioner asserted that he only learned about these methods from the filmmaker, who provided access to his materials including unredacted tapes and complete transcripts of witness interviews.

         The federal district court dismissed the habeas petition as untimely, and the Second Circuit affirmed, also concluding that the proceeding was time-barred (see Friedman v Rehal, 618 F.3d 142, 152 [2d Cir 2010]). The court's opinion, however, included an extensive discussion highlighting the judges' concerns with the process leading to petitioner's conviction. The court noted that "[t]he magnitude of the allegations against petitioner must be viewed in the context of the late 1980s and early-1990s, a period in which allegations of outrageously bizarre and often ritualistic child abuse spread like wildfire across the country" (618 F.3d at 155). This "[v]ast moral panic fueled a series of highly-questionable child sex abuse prosecutions, " based largely "on memories that alleged victims 'recovered' through suggestive memory recovery tactics" and investigatory techniques that, "[t]he prevailing view" now holds, "are [in the vast majority of cases] false" (id. at 155-156). The court observed that between 1984 and 1995 "seventy-two individuals were convicted in nearly a dozen major child sex abuse and satanic ritual prosecutions, " but "almost all th[ose] convictions have since been reversed" (id. at 156). The instant case was "merely one example" of that "significant national trend, " as it featured many of the same allegations, investigatory techniques, and developmental patterns seen across the country (id. at 158). The court intended that its "lengthy discussion of the facts and circumstances that Friedman asserts led to his conviction" would "make the case that a further inquiry by a responsible prosecutor's office is justified despite a guilty plea entered under circumstances which clearly suggest that it was not voluntary" (id. at 161). The court ultimately concluded that "[t]he record here suggests a reasonable likelihood that Jesse Friedman was wrongfully convicted" (id. at 159-160 [internal quotation marks omitted]). [1]


         After the Second Circuit issued its decision, then-Nassau County District Attorney Kathleen M. Rice announced she would reopen the case and convene a "Friedman Case Review Panel" to oversee the reinvestigation. Senior prosecutors in the Nassau County District Attorney's Office, who were not involved in the original case nor part of the prior administration that prosecuted petitioner, worked alongside an "Advisory Panel" of criminal justice and wrongful conviction experts. The reinvestigation was conducted by the "Review Team" of prosecutors, which had access to the District Attorney's entire case file as well as the grand jury minutes. The "Advisory Panel" advised the Review Team on "process issues, " counseling the prosecutors on how best to conduct a reinvestigation and generally auditing whether the Review Team was operating in good faith. The Advisory Panel did not itself conduct the reinvestigation or weigh the credibility of witnesses, and it had access only to those documents, some redacted, provided to it by the District Attorney's office.

         In the Review Team's final report, it concluded that petitioner "was not wrongfully convicted" and that none of the Second Circuit's principal concerns were substantiated by the evidence. It distinguished the case from the moral panic cases of the 1980s and 1990s on the grounds that the allegations in the Friedman prosecution were plausible, the children involved were older, and petitioner had pleaded guilty. The Advisory Panel prefaced the report with its own statement that "the conclusions expressed in the Review Team's Report are reasonable and supported by the evidence it cites."

         In 2012, before completion of the report but after the District Attorney announced the appointment of the Advisory Panel, petitioner filed a FOIL request for all documents provided by the Nassau County District Attorney to the "Friedman Case Review Panel" and for all records concerning whether Advisory Panel members were "members of the general public for purposes of [FOIL] and Civil Rights Law § 50-b." By letter, the Nassau County District Attorney's Office denied the request based on multiple grounds: (1) Public Officers Law § 87 (2) (e) (iii), which, the letter claimed, exempted all "statements of witnesses compiled for law enforcement purposes, unless the witnesses have testified at trial"; (2) Civil Rights Law § 50-b (1) (as applied to FOIL through Public Officers Law § 87 [2] [a]), which exempts from disclosure any document which "tends to identify" the victim of a sex crime; (3) Public Officers Law § 87 (2) (e) (i), which the District Attorney claimed exempted from disclosure information that would interfere with an ongoing criminal investigation; [2] and (4) Public Officers Law § 87 (2) (g), which exempted most inter- and intra-agency materials [3]. The letter also informed petitioner that the District Attorney did not believe a compelling and particularized basis existed for disclosing the grand jury transcripts, but that petitioner could move for their release on those grounds in state court.

         On his administrative appeal from the denial of his FOIL request, petitioner argued that courts had rejected the type of blanket exemptions claimed by the District Attorney. The FOIL Appeal Officer nevertheless upheld the asserted exemptions as sufficiently particular.


         Petitioner subsequently commenced this proceeding pursuant to CPLR article 78 against respondent, Kathleen M. Rice, in her official capacity as the Nassau County District Attorney, [4] seeking disclosure of his entire case file and the grand jury minutes [5]. The District Attorney responded that the court lacked jurisdiction and sought dismissal of the petition, asserting that petitioner had not yet exhausted his administrative remedies since he had only requested documents shared with the Advisory Panel rather than his entire case file. As to what had been shared with the Advisory Panel, the District Attorney reasserted that the material was exempt from disclosure under FOIL and Civil Rights Law § 50-b (1).

         By this time, the reinvestigation was complete and the Review Team had elected to disclose inter- and intra-agency communications, rendering moot two of the prior four FOIL grounds for withholding disclosure. The District Attorney nevertheless maintained that the remaining documents were exempt, relying on Civil Rights Law § 50-b (1) and the confidentiality exemption contained in Public Officers Law § 87 (2) (e) (iii) [6]. As for the grand jury minutes, the District Attorney argued that petitioner had failed to demonstrate a particularized and compelling need for their release, as required under Criminal Procedure Law § 190.25 (4) (a).

         Supreme Court granted the petition and directed the District Attorney to provide petitioner with all documents and records in his case file, as well as the grand jury minutes, with the names of three witnesses redacted [7]. Pursuant to CPLR 5519 ...

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