The Matter of Jesse Friedman v. Kathleen M. Rice
56
NYNov 21, 2017Background
- Jesse Friedman was convicted in 1988 of child sexual offenses after police interviews of child witnesses; he later pleaded guilty and was released on parole in 2001.
- The documentary "Capturing the Friedmans" raised concerns about investigatory techniques used in the case; Friedman pursued post-conviction and habeas proceedings, and the Second Circuit found a reasonable likelihood of wrongful conviction (Friedman v. Rehal) but dismissed his habeas petition as time‑barred.
- Nassau County DA Kathleen Rice reopened the case and created a Review Team plus an Advisory Panel; Friedman filed a FOIL request in 2012 seeking documents provided to that panel and other materials from his case file, including witness interviews and grand jury minutes.
- The DA denied the FOIL request invoking Public Officers Law § 87(2)(e)(iii) (confidential law‑enforcement sources/info), Civil Rights Law § 50‑b, and other exemptions; the FOIL appeal officer upheld the denial.
- Supreme Court ordered limited disclosure (with redactions); the Appellate Division (Second Dept) reversed, applying a departmental rule that statements of nontestifying witnesses are presumptively confidential and exempt under § 87(2)(e)(iii).
- The Court of Appeals reversed the Second Department: it held that § 87(2)(e)(iii) permits withholding only upon an express promise of confidentiality or when confidentiality can reasonably be inferred from the circumstances, and remitted the case to Supreme Court for application of that standard.
Issues
| Issue | Friedman’s Argument | Rice’s Argument | Held |
|---|---|---|---|
| Whether petitioner had to exhaust administrative FOIL remedies for his entire case file before judicial review | His initial FOIL request reasonably sought materials provided to the Review Panel and further administrative steps would be futile | He argued petitioner did not request the entire case file so exhaustion required | Court: Exhaustion not required here because the DA’s denial made further administrative review futile as to materials tied to the Review/Advisory Panel; remand for merits |
| Proper interpretation of FOIL § 87(2)(e)(iii) (confidential law‑enforcement sources/info) | § 87(2)(e)(iii) should not create a blanket exemption; must require express or reasonably inferred confidentiality | Second Dept rule: statements of nontestifying witnesses are presumptively confidential and therefore exempt | Court: Rejected blanket presumption; agency may withhold only upon showing (1) an express promise of confidentiality, or (2) that circumstances permit a reasonable inference of confidentiality |
| Whether grand jury minutes and withheld witness statements should be released now | Argued need for materials to pursue claim of actual innocence and to justify grand jury access | DA argued grand jury minutes require particularized and compelling need; witnesses and victim‑identity protections apply | Court: Did not decide on merits; remitted grand jury and Civil Rights Law §50‑b issues to Supreme Court for in camera review and application of correct FOIL standard |
Key Cases Cited
- Friedman v. Rehal, 618 F.3d 142 (2d Cir. 2010) (appellate discussion raising concerns about the original investigation and noting reasonable likelihood of wrongful conviction)
- U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993) (FOIA Exemption 7(D) requires an express assurance of confidentiality or facts permitting a reasonable inference of confidentiality)
- Pope v. United States, 599 F.2d 1383 (5th Cir.) (withholding witness statements where circumstances supported an implied assurance of confidentiality)
- Matter of Fink v. Lefkowitz, 47 N.Y.2d 567 (1979) (FOIL’s purpose: broad public access; exemptions narrowly construed)
- Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007) (agencies must provide particularized justification to withhold records under FOIL)
- Matter of Lesher v. Hynes, 19 N.Y.3d 57 (2012) (federal FOIA and its history are instructive when interpreting FOIL)