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N.Y.’s Top Court Clarifies Freedom of Information Exemption for Disclosure of Confidential Sources of Information

by Christopher Zoukis

The New York Court of Appeals made an important clarification to an exemption to the state’s Freedom of Information Law (“FOIL”), which restricts access to records compiled for law enforcement purposes that identify confidential sources or information.

The November 21, 2017, opinion ruled that the exemption may only be applied when an express promise of confidentiality was made to the source or when the circumstances are such that “the confidentiality of the source or information can be reasonably inferred.”

Jessie Friedman and his father pleaded guilty to various sex crimes relating to their alleged ritualistic sexual abuse of children in the late 1980s. Friedman, who was 18 at the time of his plea, spent 13 years in prison for his conviction. His father died in prison.

In 2002, the film “Capturing the Friedmans” was released. The movie suggested that the Friedmans had been caught up in the wave of bizarre child sexual abuse cases in the 1980s and early 1990s, and that they were factually innocent. The filmmakers uncovered the use of unreliable and since discredited interview techniques on the child witnesses — including hypnosis — among other irregularities.

Friedman brought a federal habeas corpus petition upon learning of this information. However, his petition was time-barred. But, in a strongly worded opinion from the U.S. Second Circuit Court of Appeals upholding the dismissal, the court noted that Friedman appeared to have been wrongfully convicted and strongly suggested that prosecutors re-examine the case.

The Nassau County District Attorney convened a Friedman Case Review Panel in response to the Second Circuit’s opinion. Despite the evidence suggesting otherwise, the panel concluded that Friedman was not wrongfully convicted. Friedman then invoked FOIL to seek all records provided by the Nassau County DA to the review panel.

The DA denied the request, based in part on the statutory exemption of records “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). The Appellate Division, Second Department upheld the DA’s denial, but New York’s top court, the Court of Appeals, reversed.

The Court of Appeals determined that the lower court used the wrong standard when considering the confidential source or information exemption under § 87(2)(e)(iii). That court applied a blanket exemption to all witness statements obtained in the course of preparing for trial, other than those used in open court.

The Court of Appeals held that this was the incorrect standard under the FOIL exemption at issue. Instead, the proper interpretation of the exemption is that “sources and information may be withheld only upon a specific showing of an express promise of confidentiality to the source, or a finding that, under the circumstances of the particular case, the confidentiality of the source or information can be reasonably inferred.”

This interpretation tracks the language used by the U.S. Supreme Court to explain a similar exemption in the federal Freedom of Information Act. It also honors the purpose of FOIL, which is “[t]o promote open government and accountability” and follows legal precedent that “exemptions [to FOIL] are to be narrowly interpreted so that the public is granted maximum access to the records of government,” instructed the Court of Appeals.

Accordingly, the Court of Appeals reversed the Appellate Division, with costs, and remitted the matter to the Supreme Court for further proceedings in accordance with this opinion. See: Matter of Friedman v. Rice, 90 N.E.3d 800 (NY 2017). 

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