Matter of Friedman v Rice

2015 NY Slip Op 09103 [134 AD3d 826]

December 9, 2015

Appellate Division, Second Department

As corrected through Wednesday, February 11, 2015

[*1]

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

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

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

In a proceeding pursuant to CPLR article 78, inter alia, to compel the production ofcertain documents pursuant to the Freedom of Information Law (Public Officers Law art6) and CPL 190.25 (4), the appeal is from a judgment of the Supreme Court, NassauCounty (Winslow, J.), dated August 23, 2013, which granted the petition and directed theNassau County District Attorney to disclose the subject documents, with certainredactions. By decision and order on motion dated October 1, 2013, this Court grantedthat branch of the motion of Kathleen M. Rice, in her official capacity as the NassauCounty District Attorney, which was to confirm that an automatic stay is in effectpursuant 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 inprison. In 2010, the Nassau County District Attorney (hereinafter the District Attorney)assigned a team of senior prosecutors to reinvestigate the petitioner's criminal case, withthe 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 DistrictAttorney's office pursuant to the Freedom of Information Law (Public Officers Law art6; 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 thedocuments in his case file and had reviewed redacted witness statements, summaries andanalyses of witness interviews, and inter- and intra-agency communications. The DistrictAttorney's office indicated that the members of the advisory panel were not able toreview unredacted witness statements or the grand jury minutes. The denial of thepetitioner's FOIL request was upheld on administrative appeal.

Thereafter, the petitioner commenced this proceeding pursuant to CPLR article 78 toreview the determination denying his FOIL request. In addition, the petition soughtdisclosure of the entire case file and, pursuant to CPL 190.25 (4), the release of the grandjury minutes and records. During the pendency of this proceeding, the District Attorney'soffice released the reinvestigation report with supporting documents, which included theinter- and intra-agency communications from [*2]thepetitioner's case file. In the judgment appealed from, the Supreme Court granted thepetition and directed the District Attorney to disclose the petitioner's entire case file andthe grand jury materials, with redactions to protect the identities of threecomplainants.

As an initial matter, although the petition sought the disclosure of certain documentsthat were not within the scope of the petitioner's FOIL request to the District Attorney'soffice, this CPLR article 78 proceeding is not barred by the doctrine of exhaustion ofadministrative remedies. The petitioner's submissions, which included the letters from theDistrict Attorney's office denying his FOIL request, established that, without a courtorder, any attempt to seek disclosure from the District Attorney's office of the additionaldocuments identified by the District Attorney, consisting of the grand jury minutes andunredacted witness statements, would have been futile (see Matter of New York Times Co.v City of N.Y. Police Dept., 103 AD3d 405, 408-409 [2013]; see alsoCivil Rights Law § 50-b [2] [b]; CPL 190.25 [4] [a]; Matter of Bridgewater vJohnson, 44 AD3d 549, 550 [2007]).

"FOIL requires that state and municipal agencies 'make available for publicinspection and copying all records,' subject to certain exemptions" (Matter of Madera v Elmont Pub.Lib., 101 AD3d 726, 727 [2012], quoting Public Officers Law§ 87 [2]; seeMatter of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007]; Matter of Cook v Nassau CountyPolice Dept., 110 AD3d 718, 719 [2013]). "Exemptions are to be narrowlyconstrued to provide maximum access, and the agency seeking to prevent disclosurecarries the burden of demonstrating that the requested material falls squarely within aFOIL exemption by articulating a particularized and specific justification for denyingaccess" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d562, 566 [1986]; see Matter ofTown of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d652, 657 [2012]; Matter of Data Tree, LLC v Romaine, 9 NY3d at 462;Matter of Madera v Elmont Pub. Lib., 101 AD3d at 727).

Here, the District Attorney met her burden of demonstrating that the witnessstatements and other documents containing information provided to law enforcementofficials during the criminal investigation by witnesses who did not testify at trial wereexempt from disclosure under Public Officers Law § 87 (2) (e) (iii)." '[T]he statements of nontestifying witnesses are confidential and notdisclosable under FOIL' " (Matter of Esposito v Rice, 67 AD3d 797, 797 [2009],quoting Matter of Johnson v Hynes, 264 AD2d 777, 777 [1999]; seePublic Officers Law § 87 [2] [e] [iii]; Matter of Zarvela v Banks, 117 AD3d 1070, 1071 [2014];Matter of Williams v Erie County Dist. Attorney, 255 AD2d 863 [1998];Matter of Spencer v New York State Police, 187 AD2d 919, 922 [1992];Matter of Moore v Santucci, 151 AD2d 677, 679 [1989]). Thus, the documentssought by the petitioner, which contain statements of nontestifying witnesses, are notdisclosable under FOIL.

Contrary to the petitioner's contention, the fact that he pleaded guilty and forfeitedhis right to a trial does not warrant a different conclusion. Under this Court'sjurisprudence, the statements of nontestifying witnesses are confidential, and that "cloakof confidentiality" is removed "once the statements have been used in open court"(Matter of Moore v Santucci, 151 AD2d at 679). The entry of the petitioner's pleaof guilty did not remove the "cloak of confidentiality" from the statements of thenontestifying witnesses. Thus, those statements remain confidential and are notdisclosable under FOIL.

Contrary to our dissenting colleague's opinion, we decline to depart from ourestablished jurisprudence, which holds that the statements of nontestifying witness areconfidential and not disclosable under FOIL. Public Officers Law § 87 (2)(e) (iii) exempts from disclosure records that are "compiled for law enforcement purposesand which, if disclosed, would . . . identify a confidential source or discloseconfidential information relating to a criminal investigation." Statements made bywitnesses to law enforcement officials in the course of a criminal investigation areconfidential in nature, and, thus, the disclosure of such statements would constitutedisclosure of "confidential information relating to a criminal investigation" (PublicOfficers Law § 87 [2] [e] [iii]). The rule holding that such statements areinherently confidential is sound, as it encourages " 'private citizens to furnishcontroversial information' " to law enforcement officials (Hawkins vKurlander, 98 AD2d 14, 16 [1983] [discussing the purpose of the "law enforcementinvestigation exemption"], quoting Pope v United States, [*3]599 F2d 1383, 1387 [5th Cir 1979]). This rule ofconfidentiality protects not only complaining witnesses, but also accused individualswho, for instance, are never formally charged with a crime or are found innocent ofcharged crimes. At the time the witness statement is made to law enforcement officials, itis confidential, and this "cloak of confidentiality" remains in place until the statement isused in open court or the witness testifies at trial (Matter of Moore v Santucci,151 AD2d at 679). Consequently, the statements of nontestifying witnesses areconfidential, 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 arenot disclosable under FOIL.

In addition, the petitioner failed to make the requisite showing in support of thatbranch of his petition which was pursuant to CPL 190.25 (4) to compel disclosure of thegrand jury materials. "[S]ecrecy has been an integral feature of Grand Jury proceedingssince well before the founding of our Nation" (Matter of District Attorney of SuffolkCounty, 58 NY2d 436, 443 [1983]). While "secrecy of grand jury minutes is notabsolute" (People v Di Napoli, 27 NY2d 229, 234 [1970]), "a presumption ofconfidentiality attaches to the record of Grand Jury proceedings" (People vFetcho, 91 NY2d 765, 769 [1998]). As a threshold matter, a party seeking disclosureof grand jury materials under CPL 190.25 (4) (a) "must establish a compelling andparticularized need for them" (People v Robinson, 98 NY2d 755, 756 [2002];see Matter of Lungen v Kane, 88 NY2d 861, 862 [1996]; Matter of DistrictAttorney of Suffolk County, 58 NY2d at 444; Matter of Aiani v Donovan, 98 AD3d 972, 973 [2012])."Only then must the court balance various factors to assess, in its discretion, whetherdisclosure is appropriate under the circumstances presented" (People v Robinson,98 NY2d at 756; see People v Fetcho, 91 NY2d at 769; Matter of Lungen vKane, 88 NY2d at 862-863; Matter of Aiani v Donovan, 98 AD3d at973).

As recently stated by this Court in Matter of James v Donovan (130 AD3d 1032, 1037[2015]), "[a] party seeking disclosure will not satisfy the compelling and particularizedneed threshold simply by asserting, or even showing, that a public interest is involved."Rather, "[t]he party must, by a factual presentation, demonstrate why, and to what extent,the party requires the minutes of a particular grand jury proceeding 'to advance theactions or measures taken, or proposed (e.g., legal action, administrative inquiry orlegislative investigation), to insure that the public interest has been, or will be,served' " (id. at 1037, quoting Matter of District Attorney of SuffolkCounty, 86 AD2d 294, 299 [1982], affd 58 NY2d 436 [1983]).

Despite the public interest involved in this case, the petitioner's submissions did notestablish a compelling and particularized need for disclosure of the grand jury materials(see Matter of District Attorney of Suffolk County, 58 NY2d at 444-445; Matter of James v Donovan,130 AD3d 1032 [2015]; Matter of Lustberg v Curry, 235 AD2d 615, 616[1997]; cf. Matter of Aiani v Donovan, 98 AD3d at 974). The petitioner failed todemonstrate, by factual presentation, why, and to what extent, the grand jury materialsare necessary to insure that the public interest will be served. In particular, the petitionerfailed to sufficiently demonstrate how examination of the grand jury minutes and recordswill support his claim of actual innocence. Furthermore, contrary to our dissentingcolleague's opinion, the petitioner failed to demonstrate, by factual presentation, whydisclosure of the grand jury materials is necessary to determine whether flawedinterviewing techniques were used in the investigation which resulted in the sex abusecharges against the petitioner. Although our dissenting colleague asserts that there is alikelihood that the grand jury minutes provide the link between the victim statements andthe increasing number of counts in the successive indictments filed in the criminalproceeding against the petitioner, any such link does not constitute a compelling andparticularized need for the grand jury materials, especially since the increased counts maybe attributed to factors such as an increased number of children testifying with respect tothe successive indictments. Moreover, there is no indication in this record that theSupreme Court ever reviewed the grand jury minutes in camera before directing theirdisclosure. Under these circumstances, the court erred in directing the disclosure of thegrand jury materials.

Accordingly, the Supreme Court should have denied the petition and dismissed theproceeding.

[*4] The District Attorney'sremaining contention need not be reached in light of our determination. Leventhal, J.P.,Hall and Maltese, JJ., concur.

Barros, J., dissents, and votes to modify the judgment, on the law and in the exerciseof discretion, by deleting the provision thereof directing the Nassau County DistrictAttorney to disclose "every piece of paper that has been generated in the matter of Peopleagainst Jesse Friedman," and substituting therefore a provision directing the NassauCounty District Attorney to disclose to the petitioner (a) the redacted materials providedto the advisory panel, (b) the investigatory and case files, redacting only the names of thecomplainants who objected to the disclosure of their identities, and (c) the grand juryminutes, redacting only the names of the complainants who objected to the disclosure oftheir identities, to affirm the judgment as so modified, and to remit the matter to theSupreme Court, Nassau County, for further proceedings, in accordance with thefollowing memorandum:

In this proceeding pursuant to CPLR article 78, the petitioner sought: (1) pursuant toPublic Officers Law § 89 (4) (b), judicial review of the determination of theNassau County District Attorney's office denying his request for the disclosure of certaindocuments pursuant to the Freedom of Information Law (Public Officers Law art 6[hereinafter FOIL]); (2) pursuant to Civil Rights Law § 50-b (2) (b), thedisclosure of "the case files and investigatory files" held by the Nassau County DistrictAttorney's office; and (3) pursuant to CPL 190.25, disclosure of the grand jury minutesbased upon a compelling and particularized need. Upon conducting an in camera review,the Supreme Court granted the petition and directed the Nassau County District Attorney(hereinafter the District Attorney) to disclose "every piece of paper that has beengenerated in the matter of People against Jesse Friedman," redacting only the names ofthe complainants who, upon being served with the petition, objected to their identitiesbeing disclosed.

For the reasons set forth herein, I would modify the judgment by deleting theprovision thereof directing the District Attorney to disclose "every piece of paper that hasbeen generated in the matter of People against Jesse Friedman," and substituting therefora provision directing the District Attorney to disclose to the petitioner the following: (1)pursuant to FOIL, the redacted materials provided to the advisory panel; (2) pursuant toCivil Rights Law § 50-b (2) (b), the investigatory and case files, redactingonly the names of the complainants who objected to their identities being disclosed; and(3) pursuant to CPL 190.25 (4) (a), the grand jury minutes, redacting only the names ofthe complainants who objected to their identities being disclosed. I would also remit thematter to the Supreme Court, Nassau County, for proceedings to fashion and issue anorder of nondisclosure, to which the petitioner agreed, so as to prevent public disclosureof the identity of any complainant.

I. The FOIL Request

In response to the petitioner's FOIL request for the disclosure of documents providedto the advisory panel, the District Attorney's office revealed that the advisory panelreviewed four categories of information: (1) redacted witness statements; (2) summariesof interviews with fact witnesses; (3) the District Attorney's analyses of witnessinterviews and "other evidence"; and (4) inter- and intra-agency communications. As toeach category, the District Attorney's office denied the disclosure request, invokingexemptions from disclosure set forth in FOIL.

In reversing the Supreme Court, the majority has determined that the DistrictAttorney met her burden of demonstrating that the entire contents of the investigatoryand case files, i.e, "every piece of paper that has been generated in the matter of Peopleagainst Jesse Friedman," were exempt from disclosure pursuant to Public Officers Law§ 87 (2) (e) (iii) (hereinafter the confidentiality exemption). I disagree.

In reaching its determination, the majority relies upon cases from this Court holdingthat where a defendant has been convicted by a jury after trial, "the requested statementsof witnesses [*5]who did not testify at trial areconfidential and are not disclosable" under the confidentiality exemption (Matter of Zarvela v Banks, 117AD3d 1070, 1071 [2014]; see Matter of Esposito v Rice, 67 AD3d 797, 797-798[2009]; Matter of Johnson v Hynes, 264 AD2d 777 [1999]; Matter of Moorev Santucci, 151 AD2d 677, 679 [1989]; Matter of Knight v Gold, 53 AD2d694 [1976]).

This blanket rule of nondisclosure is derived from common law (see Matter ofWerfel v Fitzgerald, 23 AD2d 306, 309 [1965]), and an interpretation of a priorversion of FOIL, which broadly exempted from disclosure information which is "part ofinvestigatory files compiled for law enforcement purposes" (Matter of Knight vGold, 53 AD2d at 694 [internal quotation marks omitted]; see Public OfficersLaw former § 88 [7] [d]). With amendments to the FOIL statute in 1977,which became effective in 1978, the legislature replaced the blanket exemption with Public Officers Law § 87(2) (e) (i)-(iv). The amendments "broadened the reach of the statute by making all recordspresumptively subject to disclosure, rather than certain enumerated categories"(Matter of Miracle Mile Assoc. v Yudelson, 68 AD2d 176, 181 [1979]; seeMatter of Sheehan v City of Binghamton, 59 AD2d 808, 808-809 [1977]; seealso Matter of Fink v Lefkowitz, 47 NY2d 567 [1979]; Church of Scientology ofN.Y. v State of New York, 61 AD2d 942, 943 [1978], affd 46 NY2d 906[1979]).

Unlike the prior version, the current FOIL statute delineates four categories ofrecords compiled for law enforcement purposes that are exempt from disclosure (seePublic Officers Law § 87 [2] [e] [i]-[iv]). None of these exemptionssuggests that all pretrial investigatory materials are confidential. While there is anexemption from disclosure for records that would "interfere with lawenforcement investigations" (Public Officers Law § 87 [2] [e] [i] [emphasisadded]), or that would reveal nonroutine "investigative techniques or procedures" (PublicOfficers Law § 87 [2] [e] [iv]), neither of those exemptions is before thisCourt.

The confidentiality exemption, relied upon by the District Attorney, applies torecords that are (1) "compiled for law enforcement purposes," and (2) "which, ifdisclosed, would . . . identify a confidential source or disclose confidentialinformation relating to a criminal investigation" (Public Officers Law § 87[2] [e] [iii]). Therefore, in order to invoke this exemption, the District Attorney wasrequired to show that the requested information was compiled for law enforcementpurposes, and that the release of the material would result in the specific harm set forth inthe statute.

The purpose of the confidentiality exemption is "to encourage private citizens tofurnish controversial information" to law enforcement by "assuring confidentiality undercertain circumstances" (Hawkins v Kurlander, 98 AD2d 14, 16 [1983] [internalquotation marks omitted]; see Pope v United States, 599 F2d 1383 [5th Cir1979]).

"FOIL's legislative history . . . indicates that many of its provisions. . . were patterned after the Federal analogue," i.e., the Freedom ofInformation Act (5 USC § 552) (Matter of Lesher v Hynes, 19 NY3d 57, 64 [2012] [internalquotation marks omitted]; see Matter of Fink v Lefkowitz, 47 NY2d 567, 572 n[1979]). "Accordingly, Federal case law and legislative history . . . areinstructive when interpreting such provisions" (Matter of Lesher v Hynes, 19NY3d at 64 [internal quotation marks omitted]). FOIL's confidentiality exemption ismodeled on 5 USC § 552 (b) (7) (D) (see Matter of Lesher v Hynes,19 NY3d at 64; see also Department of Justice v Landano, 508 US 165 [1993]).In interpreting 5 USC § 552 (b) (7) (D), the United States Supreme Courthas held that a source is "confidential" if he or she provided information "under anexpress assurance of confidentiality or in circumstances from which such an assurancecould be reasonably inferred" (Department of Justice v Landano, 508 US at 172[internal quotation marks omitted]).

Similarly, other departments of the Appellate Division have held that an agencyinvoking the confidentiality exemption under FOIL must show facts and circumstancesindicative of either an express or implied promise of confidentiality to the witnesseswhose statements are being requested (see Matter of Exoneration Initiative v New York City PoliceDept., 114 AD3d 436, 440 [2014] [witness statement does not fall under theconfidentiality exemption "in the absence of any evidence that this person received anexpress or implied promise of confidentiality"]; Matter of Gomez v Fischer, 74 AD3d 1399, 1401 [2010]["(s)tatements by a witness must be disclosed absent a showing that he or she was aconfidential informant or requested or was promised anonymity, or that [*6]his or her life or safety would be endangered bydisclosure"]; Matter ofCarnevale v City of Albany, 68 AD3d 1290, 1292 [2009]; Matter of John H. v Goord, 27AD3d 798, 799 [2006]; Matter of Johnson v New York City Police Dept.,257 AD2d 343, 348 [1999]; Brown v Town of Amherst, 195 AD2d 979, 979[1993]; cf. Matter of Allen v Strojnowski, 129 AD2d 700, 701 [1987] ["(t)henames, addresses, and statements of confidential witnesses compiled during a criminalinvestigation are exempt from disclosure"]).

The unduly broad construction of the confidentiality exemption given by thisDepartment is inconsistent with the Court of Appeals' holdings that reject "blanketexemptions for particular types of documents" (Matter of Gould v New York CityPolice Dept., 89 NY2d 267, 275 [1996]; see Matter of Fink v Lefkowitz, 47NY2d at 571), and that require the agency invoking one of the exemptions of PublicOfficers Law § 87 (2) to "articulate particularized and specific justificationfor not disclosing requested documents" and, if necessary, submit the requested materialsto the court for in camera inspection (Matter of Gould v New York City PoliceDept., 89 NY2d at 275 [internal quotation marks omitted]; see Matter of Town of Waterford vNew York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012];Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362 [2002];Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246,252 [1987]).

For example, in Matter of Gould v New York City Police Dept. (89 NY2d267 [1996]), the petitioner sought police activity logs and complaint follow-up reports,which included witness statements (see id. at 277). The Court of Appeals heldthat those investigatory records were not categorically exempt from disclosure underFOIL (see id. at 275-276), and that the respondent had to make the appropriateparticularized showing that the claimed exemption applied (see id. at 275; seealso Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746[2001]).

In my view, the confidentiality exemption should not be construed to categoricallypermit the District Attorney to withhold all of the statements of witnesses who did nottestify at trial. Rather, consistency with the aforementioned authorities compels theconclusion that the confidentiality exemption shields from disclosure only the statementsof confidential sources and information derived therefrom.

Here, the District Attorney failed to make any showing that the complainants qualifyas "confidential sources" within the meaning of Public Officers Law § 87(2) (e) (iii) by showing either that an express promise of confidentiality was made, or theexistence of circumstances from which such an assurance can be reasonably inferred. Tothe contrary, the circumstances suggest that the complainants were not confidentialsources, since their trial testimony would have been required to prove the numerouscharges against the petitioner (see e.g. Cornell Univ. v City of N.Y. Police Dept.,153 AD2d 515, 517 [1989] ["(a)ny of the witnesses could have been called to testify at acriminal trial, their names and addresses were discoverable absent a protective order. . . and, in fact, may have been disclosed"]). The District Attorneyacknowledges that, prior to the entry of the petitioner's guilty plea, and in preparation fortrial, the prosecutor provided to the petitioner's defense counsel the names of all of thecomplainants. The inference from such disclosure is that the prosecutor intended to callthe complainants as witnesses during the trial, and, therefore, would have been requiredto turn over to the petitioner those witnesses' prior statements (see People vRosario, 9 NY2d 286 [1961]).

While the District Attorney argues that the privacy of the victims is often asignificant consideration in any prosecutor's decision to plea bargain in sex crimes cases,such consideration does not amount to an express or implied promise ofconfidentiality so as to qualify the victims as "confidential sources" within the meaningof Public Officers Law § 87 (2) (e) (iii). If the defendant does not accept theprosecutor's offer to plead guilty, he or she has the right to confront his or her accusers attrial (see NY Const, art I, § 6; People v Hill, 9 NY3d 189, 191 [2007]).

Since the majority determined that the confidentiality exemption applied, it did notgo on to consider the other exemption invoked by the District Attorney, i.e., PublicOfficers Law § 87 (2) (a), which permits an agency to deny access torecords which "are specifically exempted from disclosure by state or federal statute." Onesuch statute exempting records from disclosure is Civil Rights Law § 50-b(1), which requires agencies to withhold from disclosure documents that tend to identifythe victim of a sex offense (see Matter of Karlin v McMahon, 96 NY2d 842, 843[2001]).

[*7] Here, since the District Attorneyacknowledged that the names of the complainants were redacted from the recordsprovided to the advisory panel, she failed to meet her burden of demonstrating that thoseredacted materials tend to identify the victim of a sex offense. "If a requested documentdoes not contain information that tends to identify the victim of a sex crime, and theFOIL request is otherwise valid, the document must be disclosed" (Matter ofFappiano v New York City Police Dept., 95 NY2d at 748). While the DistrictAttorney is correct that FOIL does not require her to make redactions in order to makeotherwise exempt materials available to the petitioner (see Matter of Karlin vMcMahon, 96 NY2d at 843), the requested materials were already redacted incompliance with Civil Rights Law § 50-b in order to provide them to theadvisory panel.

II. Disclosure Pursuant to Civil Rights Law§ 50-b (2) (b)

The petitioner also sought, pursuant to Civil Rights Law § 50-b (2) (b),to compel the District Attorney to disclose to him "the case files and investigatory files"held by the District Attorney's office based upon his demonstration of "good cause"(see e.g. Matter of Radio City Music Hall Prods. [New York City Police Dept.],121 AD2d 230 [1986]; Matterof Tonia E.-A. v Kathleen K., 12 Misc 3d 828 [Fam Ct, Orange County 2006];Doe v Riback, 7 Misc 3d341 [Sup Ct, Albany County 2005]). Unlike FOIL, which requires a person seekinginformation to first request such information from the agency, and, if denied, to thenexhaust administrative remedies before resorting to a judicial forum to gain relief(see Public Officers Law § 89 [4] [a]; Matter of Bradhurst Site Constr.Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, 818[2015]; Doe v Lake GroveSch., 107 AD3d 841, 842-843 [2013]), an application for records under CivilRights Law § 50-b (2) (b) must be made directly to "a court havingjurisdiction over the alleged offense." Civil Rights Law § 50-b (2) (b)permits disclosure of material that identifies the victim of a sex offense to "[a]ny personwho . . . demonstrates to the satisfaction of the court that good cause existsfor disclosure to that person." Civil Rights Law § 50-b (3) provides that"[t]he court . . . may order any restrictions upon disclosure authorized insubdivision two of this section, as it deems necessary and proper to preserve theconfidentiality of the identity of the victim."

Here, as required by the statute, the petitioner served the petition on each of thecomplainants in the criminal proceeding (see Civil Rights Law§ 50-b [2] [b]). Some complainants opposed the disclosure of the records tothe petitioner. After conducting an in camera review, the Supreme Court directed theDistrict Attorney to disclose, among other things, the case and investigatory files,redacting the names of those objecting complainants.

The Supreme Court properly determined that the petitioner established good causefor the requested materials. In support of his petition, he submitted numerous exhibits,including film footage of interviews of complainants, witnesses, and detectives, as wellas affidavits from complainants and other witnesses, showing, inter alia, that severalcomplainants, who testified before the grand jury, recanted their accusations against thepetitioner, and that the detectives investigating the claims of violent sexual abuse againstchildren implemented aggressive, suggestive, and otherwise flawed interview techniquesin order to obtain statements inculpating the petitioner. The petitioner's evidence alsoshowed that the investigators did not pursue any forensic evidence, including medicalevidence, that would confirm the complainants' allegations of violent sexual abuse. Onecomplainant who testified at the grand jury, and who has not recanted his testimony,admitted that he was hypnotized prior to making accusations against the petitioner.Indeed, after reviewing many of the same exhibits attached to the instant petition, theUnited States Court of Appeals for the Second Circuit commented that the petitionercame forward with "substantial evidence that flawed interviewing techniques were usedto produce a flood of allegations, which the then-District Attorney of Nassau Countywrung into over two hundred claims of child sexual abuse against [the] petitioner," andthat "the police, prosecutors, and the judge did everything they could to coerce a guiltyplea and avoid a trial" (Friedman v Rehal, 618 F3d 142, 158 [2d Cir 2010]).

The petitioner also submitted an affidavit from an expert in the field of investigationof crimes against children, particularly with respect to "child sex rings." The expertaverred, in effect, that in order to establish whether flawed police tactics produced falseor inaccurate information, a complete review of the details of the child interviews wasrequired. Although the District Attorney's reinvestigation report, which was generated inresponse to the aforementioned [*8]Second Circuitopinion, concluded that the petitioner's claims of improper police tactics wereexaggerated, it also acknowledged that "[i]n hindsight, the investigation was not ideal,"and that since the time of the investigation nearly 28 years ago, "methodologies forinterviewing child witnesses have evolved."

Under these circumstances, weighing the petitioner's need against the confidentialityconcerns of the individuals who objected to the disclosure, the Supreme Court properlyordered the disclosure, redacting the names of those individuals. However, the SupremeCourt improvidently exercised its discretion (see Civil Rights Law§ 50-b [3]) in failing to issue an order of nondisclosure, to which thepetitioner agreed, so as to prevent public disclosure of the identity of anycomplainant.

III. Disclosure of Grand Jury Minutes

Grand jury minutes are court records, and are, therefore, exempt from the ambit ofFOIL (see Matter ofBridgewater v Johnson, 44 AD3d 549, 550 [2007]; Matter of Hall vBongiorno, 305 AD2d 508, 509 [2003]). Disclosure of grand jury minutes isgoverned by CPL 190.25 (4) (a), which provides, in pertinent part, that "[g]rand juryproceedings are secret, and no grand juror, or other person specified in subdivision threeof this section or section 215.70 of the penal law, may, except in the lawful discharge ofhis duties or upon written order of the court, disclose the nature or substance of anygrand jury testimony, evidence, or any decision, result or other matter attending a grandjury proceeding."

Secrecy of grand jury minutes is not absolute, and the determination of "whetherdisclosure should be permitted is addressed to, and rests in, the trial judge's discretion"(People v Di Napoli, 27 NY2d 229, 234 [1970]). "As a threshold matter, a partyseeking disclosure of grand jury minutes must establish a compelling and particularizedneed for them. Only then must the court balance various factors to assess, in itsdiscretion, whether disclosure is appropriate under the circumstances presented"(People v Robinson, 98 NY2d 755, 756 [2002]; see People v Fetcho, 91NY2d 765, 769 [1998]; Matter of Lungen v Kane, 88 NY2d 861, 862-863[1996]; Matter of District Attorney of Suffolk County, 58 NY2d 436, 444[1983]).

Contrary to the majority's conclusion, I find that the petitioner's submissionsestablished a compelling and particularized need for disclosure of the grand jury minutes,i.e., to determine whether, as stated by the Second Circuit, "flawed interviewingtechniques were used to produce a flood of allegations, which the then-District Attorneyof Nassau County wrung into over two hundred claims of child sexual abuse against[the] petitioner" (Friedman v Rehal, 618 F3d at 158). Between December 1987and November 1988, the petitioner was charged with 243 counts of sexual abuse in threeseparate indictments. The first indictment contained 10 counts against the petitioner, andthe third indictment, based upon testimony of many of the same witnesses, contained 198counts against him. The petitioner demonstrated, with extensive evidentiary submissions,a likelihood that the grand jury minutes provide the link between the victim statementscontained in the investigatory files and the increasing number of counts contained in thesuccessive indictments. The Second Circuit commented that the allegations in the thirdindictment "grew increasingly bizarre, sadistic, and even logistically implausible"(Friedman v Rehal, 618 F3d at 147-148). The petitioner demonstrated that thepublic interest for disclosure of the grand jury minutes relates not only to his claims ofactual innocence and of the coercion of his plea, but also in, inter alia, determiningwhether detectives, with the complicity of prosecutors, used inappropriate investigatorytactics, especially in their interviews of children.

The majority's rationale for determining that the petitioner "failed to sufficientlydemonstrate how examination of the grand jury minutes and records will support hisclaim of actual innocence" is circular, since it, in essence, faults the petitioner for nothaving the very evidence sought by his petition.

Since the petitioner established a compelling and particularized need for the grandjury minutes, such need must be weighed against the public interest favoring secrecy(see People v Fetcho, 91 NY2d at 769). The public interests in grand jury secrecyinclude: "(1) prevention of [*9]flight by a defendant whois about to be indicted; (2) protection of the grand jurors from interference from thoseunder investigation; (3) prevention of subornation of perjury and tampering withprospective witnesses at the trial to be held as a result of any indictment the grand juryreturns; (4) protection of an innocent accused from unfounded accusations if in fact noindictment is returned; and (5) assurance to prospective witnesses that their testimonywill be kept secret so that they will be willing to testify freely" (People v DiNapoli, 27 NY2d at 235).

Applying these criteria, nearly 28 years after the conclusion of the grand juryproceedings and the petitioner's conviction upon his plea of guilty, there is no danger ofany escape of persons who may be indicted, no interference with the grand jury's freedomto deliberate, no danger of subornation of perjury, and no need to protect any innocentaccused person (see id. at 235-236). The only consideration relevant here, i.e.,"assurance to prospective witnesses that their testimony will be kept secret so that theywill be willing to testify freely" (id. at 235), does not outweigh the petitioner'sdemonstrated compelling and particularized need (see People v Baxin, 26 NY3d 6, 11 [2015] ["Thepossibility of deterring future witnesses from providing grand jury testimony may exist,but is less pressing here, where the possibility of disclosure arises many years after theindictment and conviction"]).

Therefore, the Supreme Court providently exercised its discretion in directing thedisclosure of the grand jury minutes to the petitioner. However, again, the SupremeCourt improvidently exercised its discretion (see Civil Rights Law§ 50-b [3]) in failing to issue an order of nondisclosure, to which thepetitioner agreed, so as to prevent public disclosure of the identity of anycomplainant.

Therefore, I dissent, and would modify the judgment appealed from asindicated.