Friedman v. Rice

• Citation: 20 N.Y.S.3d 600,134 A.D.3d 826
• Parties: In the Matter of Jesse FRIEDMAN, respondent, v. Kathleen M. RICE, etc., appellant.
• Decision Date: 09 December 2015
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 826

20 N.Y.S.3d 600

In the Matter of Jesse FRIEDMAN, respondent,

v.Kathleen M. RICE, etc., appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 9, 2015.

Madeline Singas, Acting District Attorney, Mineola, N.Y. (Robert A. Schwartz and Judith R. Sternberg of counsel), for appellant.

Ronald L. Kuby, New York, N.Y. (John P. O'Brien of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

In a proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law art 6) and CPL 190.25(4), the appeal is from a judgment of the Supreme Court, Nassau County (Winslow, J.), dated August 23, 2013, which granted the petition and directed the Nassau County District Attorney to disclose the subject documents, with certain redactions. By decision and order on motion dated October 1, 2013, this Court granted that branch of the motion of Kathleen M. Rice, in her official capacity as the Nassau County District Attorney, which was to confirm that an automatic stay is in effect pursuant to CPLR 5519(a), pending hearing and determination of the appeal.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits.

In 1988, the petitioner pleaded guilty to several sex offenses. He served 13 years in prison. In 2010, the Nassau County District Attorney (hereinafter the District Attorney) assigned a team of senior prosecutors to reinvestigate the petitioner's criminal case, with the assistance of a panel of criminal justice experts (hereinafter the advisory panel). During the course of the reinvestigation, the petitioner submitted a request to the District Attorney's office pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL), seeking disclosure of the documents provided to the advisory panel. The District Attorney's office denied the petitioner's FOIL request and informed him, among other things, that the members of the advisory panel had access to most of the documents in his case file and had reviewed redacted witness statements, summaries and analyses of witness interviews, and inter-and intra- agency communications. The District Attorney's office indicated that the members of the advisory panel were not able to review unredacted witness statements or the grand jury minutes. The denial of the petitioner's FOIL request was upheld on administrative appeal.

Thereafter, the petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination denying his FOIL request. In addition, the petition sought disclosure of the entire case file and, pursuant to CPL 190.25(4), the release of the grand jury minutes and records. During the pendency of this proceeding, the District Attorney's office released the reinvestigation report with supporting documents, which included the inter—and intra-agency communications from the petitioner's case file. In the judgment appealed from, the Supreme Court granted the petition and directed the District Attorney to disclose the petitioner's entire case file and the grand jury materials, with redactions to protect the identities of three complainants.

As an initial matter, although the petition sought the disclosure of certain documents that were not within the scope of the petitioner's FOIL request to the District Attorney's office, this CPLR article 78 proceeding is not barred by the doctrine of exhaustion of administrative remedies. The petitioner's submissions, which included the letters from the District Attorney's office denying his FOIL request, established that, without a court order, any attempt to seek disclosure from the District Attorney's office of the additional documents identified by the District Attorney, consisting of the grand jury minutes and unredacted witness statements, would have been futile (see Matter of New York Times Co. v. City of N.Y. Police Dept., 103 A.D.3d 405, 408–409, 959 N.Y.S.2d 171 ; see also Civil Rights Law § 50–b[2] [b] ; CPL 190.25[4][a] ; Matter of Bridgewater v. Johnson, 44 A.D.3d 549, 550, 844 N.Y.S.2d 39 ).

"FOIL requires that state and municipal agencies ‘make available for public inspection and copying all records,’ subject to certain exemptions" (Matter of Madera v. Elmont Pub. Lib., 101 A.D.3d 726, 727, 957 N.Y.S.2d 129, quoting Public Officers Law § 87[2] ; see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 ; Matter of Cook v. Nassau County Police Dept., 110 A.D.3d 718, 719, 972 N.Y.S.2d 638 ). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 ; see Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652, 657, 944 N.Y.S.2d 429, 967 N.E.2d 652 ; Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d at 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 ; Matter of Madera v. Elmont Pub. Lib., 101 A.D.3d at 727, 957 N.Y.S.2d 129 ).

Here, the District Attorney met her burden of demonstrating that the witness statements and other documents containing information provided to law enforcement officials during the criminal investigation by witnesses who did not testify at trial were exempt from disclosure under Public Officers Law § 87(2)(e)(iii). " ‘[T]he statements of nontestifying witnesses are confidential and not disclosable under FOIL’ " (Matter of Esposito v. Rice, 67 A.D.3d 797, 797, 888 N.Y.S.2d 178, quoting Matter of Johnson v. Hynes, 264 A.D.2d 777, 777, 695 N.Y.S.2d 380 ; see Public Officers Law § 87[2][e] [iii] ; Matter of Zarvela v. Banks, 117 A.D.3d 1070, 1071, 986 N.Y.S.2d 340 ; Matter of Williams v. Erie County Dist. Attorney, 255 A.D.2d 863, 682 N.Y.S.2d 316 ; Matter of Spencer v. New York State Police, 187 A.D.2d 919, 922, 591 N.Y.S.2d 207 ; Matter of Moore v. Santucci, 151 A.D.2d 677, 679, 543 N.Y.S.2d 103 ). Thus, the documents sought by the petitioner, which contain statements of nontestifying witnesses, are not disclosable under FOIL.

Contrary to the petitioner's contention, the fact that he pleaded guilty and forfeited his right to a trial does not warrant a different conclusion. Under this Court's jurisprudence, the statements of nontestifying witnesses are confidential, and that "cloak of confidentiality" is removed "once the statements have been used in open court" (Matter of Moore v. Santucci, 151 A.D.2d at 679, 543 N.Y.S.2d 103 ). The entry of the petitioner's plea of guilty did not remove the "cloak of confidentiality" from the statements of the nontestifying witnesses. Thus, those statements remain confidential and are not disclosable under FOIL.

Contrary to our dissenting colleague's opinion, we decline to depart from our established jurisprudence, which holds that the statements of nontestifying witness are confidential and not disclosable under FOIL. Public Officers Law § 87(2)(e)(iii) exempts from disclosure records that are "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] ). Statements made by witnesses to law enforcement officials in the course of a criminal investigation are confidential in nature, and, thus, the disclosure of such statements would constitute disclosure of "confidential information relating to a criminal investigation" (Public Officers Law § 87[2][e][iii] ). The rule holding that such statements are inherently confidential is sound, as it encourages " ‘private citizens to furnish controversial information’ " to law enforcement officials (Hawkins v. Kurlander, 98 A.D.2d 14, 16, 469 N.Y.S.2d 820 [discussing the purpose of the "law enforcement investigation exemption" (id. at 16, 469 N.Y.S.2d 820 )], quoting Pope v. United States, 599 F.2d 1383, 1387 [5th Cir.] ). This rule of confidentiality protects not only complaining witnesses, but also accused individuals who, for instance, are never formally charged with a crime or are found innocent of charged crimes. At the time the witness statement is made to law enforcement officials, it is confidential, and this "cloak of confidentiality" remains in place until the statement is used in open court or the witness testifies at trial (Matter of Moore v. Santucci, 151 A.D.2d at 679, 543 N.Y.S.2d 103 ). Consequently, the statements of nontestifying witnesses are confidential, and the disclosure of such statements would constitute the "disclos[ure of] confidential information relating to a criminal investigation" (Public Officers Law § 87[2][e] [iii] ). Accordingly, the statements of nontestifying witnesses are not disclosable under FOIL.

In addition, the petitioner failed to make the requisite showing in support of that branch of his petition which was pursuant to CPL 190.25(4) to compel disclosure of the grand jury materials. "[S]ecrecy has been an integral feature of Grand Jury proceedings since well before the founding of our Nation" (Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 443, 461 N.Y.S.2d 773, 448 N.E.2d 440 ). While "secrecy of grand jury minutes is not absolute" (People v. Di Napoli, 27 N.Y.2d 229, 234, 316 N.Y.S.2d 622, 265 N.E.2d 449 ), "a presumption of confidentiality attaches to the record of Grand Jury proceedings" (People v. Fetcho, 91 N.Y.2d 765, 769, 676 N.Y.S.2d 106, 698 N.E.2d 935 ). As a threshold matter, a party seeking disclosure of grand jury materials under CPL 190.25(4)(a)"must establish a compelling and particularized need for them" (...