Friedman v. Rice

• Decision Date: 21 November 2017
• Citation: 90 N.E.3d 800,68 N.Y.S.3d 1,30 N.Y.3d 461
• Parties: In the Matter of Jesse FRIEDMAN, Appellant, v. Kathleen M. RICE, as Nassau County District Attorney, Respondent.
• Court: New York Court of Appeals Court of Appeals

30 N.Y.3d 461
90 N.E.3d 800
68 N.Y.S.3d 1

In the Matter of Jesse FRIEDMAN, Appellant,
v.
Kathleen M. RICE, as Nassau County District Attorney, Respondent.

Court of Appeals of New York.

Nov. 21, 2017.

68 N.Y.S.3d 3

Law Office of Ronald L. Kuby, New York City (Ronald L. Kuby and John P. O'Brien of counsel), for appellant.

Madeline Singas, District Attorney, Mineola (Judith R. Sternberg, Tammy J. Smiley, Daniel Bresnahan and W. Thomas Hughes of counsel), for respondent.

Davis Wright Tremaine LLP, New York City (Jeremy A. Chase, Victor A. Kovner and Laura R. Handman of counsel), and Reporters Committee for Freedom of the Press, Washington, D.C. (Bruce D. Brown, Katie Townsend and Adam A. Marshall of counsel), for Reporters Committee for Freedom of the Press and others, amici curiae.

Center for Appellate Litigation, New York City (Ben A. Schatz of counsel), Richard D. Willstatter, Amicus Curiae Committee, National Association of Criminal Defense Lawyers, White Plains and Brendan White, Amicus Curiae Committee, New York State Association of Criminal Defense Lawyers, New York City, for National Association of Criminal Defense Lawyers and another, amici curiae.

Thomas P. Zugibe, Morrie I. Kleinbart and Itamar J. Yeger, for District Attorneys Association of the State of New York, amicus curiae.

OPINION OF THE COURT

RIVERA, J.

30 N.Y.3d 466

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

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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.

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I.

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.

A.

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.

B.

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.

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Based on new information petitioner learned from the film, he commenced the first of several state and federal court

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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, 817 N.Y.S.2d 629, 850 N.E.2d 676 [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–1980's and early–1990's, 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 [internal quotation marks omitted] ). The court ultimately concluded that "[t]he record here suggests a reasonable likelihood that Jesse Friedman was

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wrongfully convicted" ( id. at 159–160 [internal quotation marks omitted] ).¹

C.

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...