The Matter of Jesse Friedman v. Kathleen M. Rice

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 56
In the Matter of Jesse Friedman,
Appellant,
v.
Kathleen M. Rice, &c.,
Respondent.

Ronald L. Kuby, for appellant.
Judith R. Sternberg, for respondent.
Reporters Committee for Freedom of the Press, et al.;
National Association of Criminal Defense Lawyers et al.; District
Attorneys Association of the State of New York, amici curiae.

RIVERA, J.:
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

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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 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

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forth in this opinion. Therefore, we now reverse the Appellate
Division order and remit the matter to Supreme Court.
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.

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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.
Based on new information petitioner learned from the
film, he commenced the first of several state and federal court
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 NY3d 894 [2006]). Petitioner
subsequently petitioned for a writ of habeas corpus in federal
court, claiming, among other things, that he would not have

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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 F3d 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 1980s and early-1990s, a period in which allegations of
outrageously bizarre and often ritualistic child abuse spread
like wildfire across the country" (618 F3d 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

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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). The court ultimately
concluded that "[t]he record here suggests a reasonable
likelihood that Jesse Friedman was 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

1
Judge Raggi concurred in the judgment and joined all but
the part of the court's opinion that recounted petitioner's
assertions of the circumstances that led to his conviction and
the conclusion the court drew as to his innocence. However, she
agreed that "the facts alleged are disturbing and may well
warrant further inquiry by a responsible prosecutor's office"
(618 F3d at 161 [Raggi, J., concurring in part]).

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criminal justice and wrongful conviction experts. The
reinvestigation was conducted by the "Review Team" of
prosecutors, which had access to the District Attorney's entire
case file as well as the grand jury minutes. The "Advisory
Panel" advised the Review Team on "process issues," counseling
the prosecutors on how best to conduct a reinvestigation and
generally auditing whether the Review Team was operating in good
faith. The Advisory Panel did not itself conduct the
reinvestigation or weigh the credibility of witnesses, and it had
access only to those documents, some redacted, provided to it by
the District Attorney's office.
In the Review Team's final report, it concluded that
petitioner "was not wrongfully convicted" and that none of the
Second Circuit's principal concerns were substantiated by the
evidence. It distinguished the case from the moral panic cases
of the 1980s and 1990s on the grounds that the allegations in the
Friedman prosecution were plausible, the children involved were
older, and petitioner had pleaded guilty. The Advisory Panel
prefaced the report with its own statement that "the conclusions
expressed in the Review Team's Report are reasonable and
supported by the evidence it cites."
In 2012, before completion of the report but after the
District Attorney announced the appointment of the Advisory
Panel, petitioner filed a FOIL request for all documents provided
by the Nassau County District Attorney to the "Friedman Case

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Review Panel" and for all records concerning whether Advisory
Panel members were "members of the general public for purposes of
[FOIL] and Civil Rights Law § 50-b." By letter, the Nassau
County District Attorney's Office denied the request based on
multiple grounds: (1) Public Officers Law § 87 (2) (e) (iii),
which, the letter claimed, exempted all "statements of witnesses
compiled for law enforcement purposes, unless the witnesses have
testified at trial"; (2) Civil Rights Law § 50-b (1) (as applied
to FOIL through Public Officers Law § 87 [2] [a]), which exempts
from disclosure any document which "tends to identify" the victim
of a sex crime; (3) Public Officers Law § 87 (2) (e) (i), which
the District Attorney claimed exempted from disclosure
information that would interfere with an ongoing criminal
investigation;2 and (4) Public Officers Law § 87 (2) (g), which
exempted most inter- and intra-agency materials.3 The letter
also informed petitioner that the District Attorney did not
believe a compelling and particularized basis existed for
disclosing the grand jury transcripts, but that petitioner could
move for their release on those grounds in state court.
On his administrative appeal from the denial of his

2
The "ongoing investigation" in this case was the District
Attorney's reinvestigation.
3
Notably, the District Attorney did not invoke Public
Officers Law § 87 (2) (b), which exempts "records or portions
thereof that . . . if disclosed would constitute an unwarranted
invasion of personal privacy" within the meaning of Public
Officers Law § 89 (2).

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FOIL request, petitioner argued that courts had rejected the type
of blanket exemptions claimed by the District Attorney. The FOIL
Appeal Officer nevertheless upheld the asserted exemptions as
sufficiently particular.
D.
Petitioner subsequently commenced this proceeding
pursuant to CPLR article 78 against respondent, Kathleen M. Rice,
in her official capacity as the Nassau County District Attorney,4
seeking disclosure of his entire case file and the grand jury
minutes.5 The District Attorney responded that the court lacked
jurisdiction and sought dismissal of the petition, asserting that
petitioner had not yet exhausted his administrative remedies
since he had only requested documents shared with the Advisory
Panel rather than his entire case file. As to what had been
shared with the Advisory Panel, the District Attorney reasserted
that the material was exempt from disclosure under FOIL and Civil
Rights Law § 50-b (1).

4
Rice stepped down as District Attorney in 2015 and was
succeeded by Madeline Singas as acting District Attorney. Singas
was elected Nassau County District Attorney in 2016.
5
Additionally, in June 2014, petitioner commenced a
defamation action against the District Attorney and two
Information Officers employed by her office, which Supreme Court
dismissed in 2015. Also in June 2014, petitioner filed a motion,
pursuant to Criminal Procedure Law § 440, to vacate his judgment
of conviction and dismiss the underlying indictments. Supreme
Court denied the motion to overturn the conviction but granted,
on consent, his request for a hearing on actual innocence. That
hearing has been stayed pending the resolution of this appeal.

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By this time, the reinvestigation was complete and the
Review Team had elected to disclose inter- and intra-agency
communications, rendering moot two of the prior four FOIL grounds
for withholding disclosure. The District Attorney nevertheless
maintained that the remaining documents were exempt, relying on
Civil Rights Law § 50-b (1) and the confidentiality exemption
contained in Public Officers Law § 87 (2) (e) (iii).6 As for the
grand jury minutes, the District Attorney argued that petitioner
had failed to demonstrate a particularized and compelling need
for their release, as required under Criminal Procedure Law §
190.25 (4) (a).
Supreme Court granted the petition and directed the
District Attorney to provide petitioner with all documents and
records in his case file, as well as the grand jury minutes, with
the names of three witnesses redacted.7 Pursuant to CPLR 5519

6
The District Attorney further claimed that all four FOIL
exemptions had been properly invoked at the time of petitioner's
request.
7
Those witnesses had contacted the court in response to
petitioner's notice of his request for access to his case file,
as required by Civil Rights Law § 50-b (2) (b). That provision
states that petitioners seeking the disclosure of documents
tending to identify the victim of a sex offense should "appl[y]
to a court having jurisdiction over the alleged offense,
demonstrate[] to the satisfaction of the court that good cause
exists for disclosure to that person[,]" and make "[s]uch
application . . . upon notice to the victim or other person
legally responsible for the care of the victim [as well as] the
public officer or employee charged with the duty of prosecuting
the offense[.]" Petitioner did not complain about the redaction
of the names of witnesses who, in response to the notice,

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(a), Supreme Court's judgment was stayed pending respondent's
appeal.
Thereafter, the Appellate Division reversed, denied the
petition, and dismissed the proceeding, with one Justice
dissenting (134 AD3d 826 [2d Dept 2015]). The court held that
petitioner did not need to exhaust his administrative remedies,
since it was clear from the District Attorney's response to the
initial FOIL request that further administrative proceedings
would have been futile. On the merits, the court concluded that
the case file was appropriately withheld under section 87 (2) (e)
(iii), which, according to Second Department precedent, exempted
from FOIL disclosure the statements of nontestifying witnesses as
presumptively confidential. The court further held that
petitioner did not demonstrate a compelling and particularized
need for the grand jury minutes.8
As discussed in her thoroughly-written opinion, the
dissenting Justice would have modified the judgment to direct the
specific disclosure of the redacted materials provided to the
Advisory Panel, as well as the case file, investigatory notes,
and grand jury minutes, subject to the redaction of the names of
the witnesses who had objected to the disclosure of their

objected to the disclosure of their identities, but he reserved
the right to do so. Supreme Court thus clarified that its
redaction order was given on consent of the parties.
8
The parties agree that no court reviewed the grand jury
minutes.

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identities (134 AD3d at 831-832 [Barros, J, dissenting]).
According to the dissent, the District Attorney failed to support
the withholding of the documents under section 87 (2) (e) (iii).
The dissent identified a split between the Second Department’s
interpretation, which applies this exemption to all witness
statements obtained in the course of preparing for trial unless
used in open court, and decisions of the First, Third, and Fourth
Departments, as well as the federal courts, which only recognize
the exemption where the government can show an express promise of
confidentiality or circumstances from which confidentiality can
be inferred (see id. at 832-836). We granted petitioner leave to
appeal (27 NY3d 903 [2016]).
II.
Petitioner argues that the Second Department's
interpretation of FOIL impermissibly creates a blanket exemption
for all nontestifying witnesses and thus misinterprets the
statute and undermines its purpose. He claims that the Second
Department deviates from the interpretation of this provision
adopted by every other Department and the federal courts.
Petitioner also asserts that he established a compelling and
particularized need for the grand jury minutes and that he should
be permitted access to the witness statements in his case file in
accordance with Civil Rights Law § 50-b (2) (b).
We conclude that the Second Department applied an
incorrect standard in determining the applicability of FOIL's

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confidentiality exemption to petitioner's request. Under section
87 (2) (e) (iii), 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.
A. Exhaustion
As a threshold matter, we reject respondent's argument
that petitioner's claim for his entire case file is unreviewable
because he did not include that specific demand in his FOIL
request. Petitioner's FOIL request sought "the documents
provided by the Nassau County District Attorney to the entity
known as the 'Friedman Case Review Panel.'" That language tracks
the District Attorney's earlier press release that four experts
had been appointed to a "Friedman Case Review Panel" who would
"join prosecutors in review of" petitioner's case, to "work
alongside" her office and "oversee the investigation." Here,
taken in context and under the circumstances, petitioner's
request reasonably described, and therefore clearly sought, all
documents that would be part of the reinvestigation process
called for by the District Attorney (see Public Officers Law § 89
[3]).
Even if that were not the case, under the particular
circumstances presented here, petitioner does not have to restart
the FOIL process anew. The general rule requiring a party to

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exhaust administrative remedies before seeking judicial review of
an agency's determination "need not be followed . . . when resort
to an administrative remedy would be futile" (Watergate II Apts.
v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). As every judge
who has considered the matter properly concluded, the District
Attorney's letter denying petitioner's FOIL request clearly
established that respondent's office would not release any
documents to petitioner from the Friedman case file absent a
court order, rendering futile any further attempts at
administrative review. The letter informed petitioner that the
information he requested was only being shared with the Advisory
Panel because its members had sworn an oath of confidentiality
and were operating "as an extension of [the prosecutor's]
office." As a general matter, the letter went on, the documents
he sought were "not available to the general public," were
"confidential under Civil Rights Law § 50-b," and so were "not
available to you or others who seek them under FOIL." As a
member of the general public -- which is, as we have long
maintained, the status of anyone seeking documents under FOIL
(see Matter of John P. v Whalen, 54 NY2d 89, 99 ["(O)ne who seeks
access to records under the Freedom of Information Law (does so)
as a member of the public(.)"]) -- petitioner was never going to
receive access to any of the documents he wanted from the
District Attorney's office. In other words, since the District
Attorney did not grant the Advisory Panel access to the entire

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unredacted case file, it follows that she similarly would have
denied access to petitioner. Indeed, the District Attorney's
unwavering position throughout this litigation has been that all
information sought by petitioner should be subject to a blanket
exemption from disclosure. Thus, even assuming any ambiguity in
petitioner's FOIL request, an additional request for information
provided specifically to the Review Team that was not disclosed
to the Advisory Panel would have been futile.9
"The exhaustion rule . . . is not an inflexible one,"
and should be applied where it "furthers the salutory goals of
relieving the courts of the burden of deciding questions
entrusted to an agency, preventing premature judicial
interference [with the work of the agency], and affording the
agency the opportunity, in advance of possible judicial review,

9
The dissent and respondent imply that the original case
file may contain material that was not shared with the Advisory
Panel and does not fit within a FOIL exemption invoked by the
District Attorney in her original denial (dissenting op at 3-4).
However, by the District Attorney's own admission, the Advisory
Panel only had access to certain materials in the case file
because of its special status. It stands to reason that any
documents that would have been reachable under FOIL -- that is,
that the public, with its less privileged status, might have been
able to request -- would also have been available to the Advisory
Panel.
Moreover, at no point in this litigation has respondent ever
indicated what additional case file material might be protected,
what additional FOIL grounds respondent would have invoked to
prevent their release, or even that respondent would have invoked
other FOIL exemptions at all. In fact, contrary to the dissent's
assertion, all the material disclosed as part of the Conviction
Integrity Review had initially been withheld under a FOIL
exemption invoked in the District Attorney's first denial letter.

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to prepare a record reflective of its 'expertise and judgment'"
(Watergate II Apts., 46 NY2d at 57 [internal citations omitted]).
Those goals would not be served by mechanical application of the
rule to petitioner's case. Under the facts presented here, it
would be an exercise in futility and a waste of administrative
and judicial resources to require petitioner to request documents
merely for respondent to restate the same bases for denial.
B. FOIL Exemption Section 87 (2) (e) (iii)
The purpose of FOIL is "[t]o promote open government
and public accountability" (Matter of Gould v New York City
Police Dept., 89 NY2d 267, 274 [1996]). The law's "premise [is]
that the public is vested with an inherent right to know and that
official secrecy is anathematic to our form of government"
(Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). One of
FOIL's salient features is its capacity to expose "abuses on the
part of government; in short, 'to hold the governors accountable
to the governed'" (id., quoting NLRB v Robbins Tire & Rubber Co.,
437 US 214, 242 [1978]). In furtherance of the legislature's
policy of disclosure, "FOIL provides the public with broad
'access to the records of government' [and] [a]n agency must
'make available for public inspection and copying all records'
unless it can claim a specific exemption to disclosure" (Matter
of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007], quoting
Public Officers Law §§ 84, 87 [2], 89 [3]). These "exemptions
are to be narrowly interpreted so that the public is granted

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maximum access to the records of government" (id. at 462). "Thus
the agency does not have carte blanche to withhold any
information it pleases. Rather it is required to articulate
particularized and specific justification . . . to exempt its
records from disclosure. Only where the material requested falls
squarely within the ambit of one of these statutory exemptions
may disclosure be withheld" (Matter of Fink, 47 NY2d at 571
[internal citation omitted]).
As relevant to this appeal, an agency may withhold
documents "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 Second Department
categorically held below that "witness statements and other
documents containing information provided to law enforcement
officials during [a] criminal investigation by witnesses who did
not testify at trial [are] exempt from disclosure under [section]
87 (2) (e) (iii)" (134 AD3d at 828). In so holding, the Second
Department purported to follow its prior departmental case law
that "the statements of nontestifying witnesses are confidential,
and that [this] 'cloak of confidentiality' is removed 'once the
statements have been used in open court'" (id., quoting Matter of
Moore v Santucci, 151 AD2d 677, 679 [2d Dept 1989]).
This precedent refers back to Second Department
decisions that were decided under a former and no longer valid

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FOIL provision. Matter of Knight v Gold (53 AD2d 694 [2d Dept
1976]), the foundation for Matter of Moore v Santucci (151 AD2d
677 [2d Dept 1989]), relied on below, was based on a prior
version of FOIL which broadly exempted all information that was
"part of investigatory files compiled for law enforcement
purposes" (former Public Officers Law § 88 [7] [d] [L 1974, ch
579 § 3]). Of particular note, this prior version of FOIL made
no reference to confidential sources or confidential information.
That is to say, under the plain language of that statute,
"investigatory files compiled for law enforcement purposes,"
including witness statements, could be withheld from disclosure
irrespective of the confidential nature of the information or its
source. That section of the statute was amended in 1977, and
replaced with the enumerated categories set forth today in Public
Officers Law §§ 87 (2) (e) (i)-(iv), including the exemption at
issue here. The legislature thus discarded the broad protections
from disclosure found in the previous version of FOIL and adopted
discrete, limited exemptions, reaffirming the law's general
policy of public access to government documents (cf. Matter of
Lesher v Hynes, 19 NY3d 57, 64-65 [2012] [describing Congress'
1974 amendments to FOIA, which replaced a generic exemption from
disclosure for information compiled for law enforcement purposes
with six specific exemptions, and noting that the New York
legislature's 1977 amendments to FOIA "followed suit"]).
The amendments were widely understood at the time to

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"reverse[] the presumption" of the old law, according to which
"records [were] deniable unless they f[ell] within one of nine
limited categories of records" that could be disclosed. Instead,
the amendments "state[d] that all records . . . are accessible
unless specifically listed as deniable" (Mario M. Cuomo,
Secretary of State, News Release, July 27, 1977, at 5, Bill
Jacket, L 1977, ch 933 [internal quotation marks omitted]).
Members of law enforcement objected to the bill for this very
reason, observing that it replaced a presumption of nondisclosure
and broad protections for all materials gathered in the course of
law enforcement investigations with a presumption of disclosure
and a narrow set of exemptions for only certain kinds of law
enforcement materials, which could be invoked at only certain
times (see e.g. William G. Connelie, Superintendent, New York
State Police, Mem re: Senate 16-A, July 29, 1977, at 5-6, Bill
Jacket, L 1977, ch 933). The Second Department's jurisprudence
thus lacks historical and textual foundation.10
Nevertheless, respondent advocates for a blanket rule
that categorically permits the withholding of statements of

10
The court's interpretation here is also inconsistent with
the Second Department's reading of Public Officers Law § 89 (2)
(b) (v), another FOIL confidentiality exemption, which generally
protects the "disclosure of information of a personal nature
reported in confidence to an agency and not relevant to the
ordinary work of such an agency." There, that court construed
confidentiality to attach only to information gathered from
"individuals [who] received an express or implied promise of
confidentiality" (Matter of Prall v New York City Dept. of
Corrections, 129 AD3d 734, 736 [2d Dept 2015]).

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nontestifying witnesses without regard to the specific facts and
circumstances of the subject case.11 In so doing, respondent
misconstrues section 87 (2) (e) (iii) and FOIL's purpose by
applying the exemption expansively rather than narrowly.
Respondent's proposed rule thus constricts the broad access to
which the public is entitled under the law. As our Court has
stated, FOIL "established a general policy [in favor of]
disclosure" (Matter of Fink, 47 NY2d at 571) and so "exemptions
[to FOIL] are to be narrowly interpreted so that the public is
granted maximum access to the records of government" (Data Tree,
9 NY3d at 462, citing Matter of Capital Newspapers, Div. of
Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]). The rule
advocated by respondent would essentially reinstate the
previously discarded non-disclosure presumption, clearly in
contravention of the statute's purpose and settled case law.
In addition, such an interpretation of section 87 (2)
(e) (iii) cannot be reconciled with the statutory language, as it
effectively excises the word "confidential" from the statutory
exemption. This we cannot do, because "[i]n the construction of
a statute, meaning and effect should be given to all its
language, if possible, and words are not to be rejected as

11
To the extent respondent's argument may be interpreted as
limited solely to witness statements, we note that section 87 (2)
(e) (iii) also applies to "confidential information" without
regard to source. In accordance with the statute's plain text,
the rule we elaborate here applies to sources and information
alike.

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superfluous when it is practicable to give each a distinct and
separate meaning" (McKinney's Cons Laws of NY Book 1, Statutes §
231; see also McKinney's Cons Laws of NY Book 1, Statutes § 98
["(E)ffect and meaning must, if possible, be given to the entire
statute and every part and word thereof."]; Majewski v
Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]).
If the legislature intended for the exemption to apply to the
statements of all witnesses, or even just those who do not
testify at trial, it would simply have stated as much. It did
not, and instead used the word "confidential" to delineate the
type of statements and sources not subject to FOIL disclosure.
Given that "the Legislature established a general policy of
disclosure by enacting the Freedom of Information Law" (Matter of
Fink, 47 NY2d at 571), we cannot undermine that policy by
exempting a large category of information from FOIL in a manner
inconsistent with the plain language of the statute.
Were we to construe the law otherwise, we would be
creating an unjustified and impermissible precondition on
disclosure. Under respondent's proposed rule, the only witness
statements accessible under FOIL are statements that have already
been made public in open court. In practice, this restricts
access to witness statements under FOIL to statements that have
already been disclosed at a trial. Nowhere does section 87 (2)
(e) (iii), however, so much as mention the need for prior public
disclosure, whether at a trial or any other judicial proceeding,

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as a disclosure precondition. The legislature did not limit
disclosure under FOIL to information released through post-hoc
publication, and we decline to impose such a limitation
ourselves.
Respondent alleges that its proposed categorical
exemption is essential to encourage the cooperation of
individuals who might otherwise refrain from disclosing
confidential information if they knew that they could be
identified as the source. This circular reasoning is
unpersuasive since the law by its terms protects confidential
sources (see Public Officers Law § 87 [2] [e] [iii] [exempting
"confidential source(s)" from disclosure under FOIL]).
Moreover, a blanket exemption for any statement made to
law enforcement on the ground that it is inherently confidential
admits of absurd results. There is no basis to assume that every
person who communicates with law enforcement in the course of a
criminal investigation expects that their name and each and every
statement they make will be held in confidence. So interpreted,
the exemption would cover even an innocuous statement to a police
officer or a comment that "relates," but is obviously
insignificant, to a criminal investigation. Consider, for
example, a nontestifying witness who avers merely that "I did not
see anything," or a witness who merely corroborates undisputed
and uncontroversial facts. Respondent concedes that statements
of such nature are not "confidential" under any accepted

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 - 23 - No. 56

understanding of the term, yet, the rule for which respondent
advocates would seem to place those statements under a "cloak of
confidentiality."
Unsurprisingly, respondent's interpretation of section
87 (2) (e) (iii) is an outlier. Every other Appellate Division
Department, in reliance on the current version of FOIL, has
concluded that "defendants are not entitled to a blanket
exemption from disclosure" (Brown v Town of Amherst, 195 AD2d
979, 979 [4th Dept 1993]). The majority rule for New York Courts
has been that "[s]tatements by a witness must be disclosed absent
a showing that [the witness] was a confidential informant or was
promised anonymity" (Matter of Gomez v Fisher, 74 AD3d 1399, 1401
[3d Dept 2010] [internal citations omitted]; see also Matter of
Exoneration Initiative v New York City Police Dept., 114 AD3d
436, 440 [1st Dept 2014]). Indeed, in Matter of Exoneration
Initiative, the First Department stated explicitly that
information about an unnamed informant does not fall within
section 87 (2) (e) (iii) "in the absence of any evidence that
th[e] person received an express or implied promise of
confidentiality" (114 AD3d at 440; see also Matter of John H. v
Goord, 27 AD3d 798, 800 [3rd Dept 2006] [overruling a claimed
FOIL confidentiality exemption where an in camera review
persuaded the court that "the records at issue . . . (did not)
contain any suggestion that the participating witnesses
qualif(ied) as confidential sources, and . . . d(id) not reveal

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 - 24 - No. 56

any source or disclose any information which would be deemed
confidential," while withholding disclosure under a separate FOIL
exemption "inasmuch as disclosure could endanger the life or
safety of a person"] [internal quotation marks and citations
omitted]).12
A blanket exemption for witness identifications and
statements would also be contrary to the interpretation of 5 USC
§ 552 (b) (7) (D), the FOIA counterpart to section 87 (2) (e)
(iii).13 As we have observed, "[f]ederal case law and

12
Hakwins v Kurlander (98 AD2d 14 [4th Dept 1983]), relied
on by the Second Department for the proposition that "[t]he rule
holding that . . . statements [of nontestifying witnesses] are
inherently confidential is sound as it encourages private
citizens to furnish controversial information to law enforcement
officials" (Matter of Friedman, 134 AD3d at 829 [internal
quotation marks omitted]), is not to the contrary. In that case
the witnesses had been given explicit assurances of
confidentiality (see Hawkins,98 Ad2d at 17 ["For a court to hold
that a promise of confidentiality can be breached merely because
the investigation did not lead to criminal charges would raise a
red flag for future witnesses who might well decline to reveal
confidences to the District Attorney because of the risk of
public disclosure."]). The federal case cited in Hawkins, and on
which the Second Department majority also relied, supports the
rule we adopt here (see Pope v United States, 599 F2d 1383, 1387
[5th Cir 1979] [upholding a decision to withhold witness
statements from disclosure under FOIA's confidentiality exemption
not because the witnesses did not testify but because "(t)he
substance of the three documents and the circumstances under
which the information was given (to the agency) convince us that
there was an implied assurance of confidentiality associated with
these communications"]).
13
The federal statute exempts from disclosure information
from confidential sources, while the New York law protects
confidential sources and information (compare 5 USC § 552 [b] [7]
[D] [exempting from disclosure "records or information compiled

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 - 25 - No. 56

legislative history . . . are instructive" when interpreting a
FOIL provision "patterned after the Federal analogue" (Matter of
Lesher v Hynes, 19 NY3d at 64, quoting Matter of Fink, 47 NY2d at
572 n).
The United States Supreme Court has explained that the
FOIA confidentiality exemption (5 USC § 552 [b] [7] [D]) applies
only where there is "an express assurance of confidentiality or

for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information . . .
could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency
or authority or any private institution which furnished
information on a confidential basis, and, in the case of a record
or information compiled by criminal law enforcement authority in
the course of a criminal investigation or by an agency conducting
a lawful national security intelligence investigation,
information furnished by a confidential source"] and U.S. Dept of
Justice v Landano, 508 US 165, 172 [1993] ["Under Exemption 7(D),
the question is not whether the requested document is of the type
that the agency usually treats as confidential, but whether the
particular source spoke with an understanding that the
communication would remain confidential."] with Public Officers
Law § 87 [2] [e] [iii] [exempting from disclosure "records . . .
compiled for law enforcement purposes and which, if disclosed,
would . . . identify a confidential source or disclose
confidential information relating to a criminal investigation"]).
The difference in language between the FOIA and FOIL provisions
does not diminish the usefulness of comparison with the federal
analogue. Even though the federal statute does not by its terms
apply to "confidential information," federal courts have
sometimes interpreted the statute to cover the same kind of
"confidential information" protected in New York on a similar
theory (see e.g. Pope, 599 F2d at 1386-87 [withholding witness
statements alleging attorney misconduct as confidential because
"disclosure of the ( documents') contents would inevitably reveal
their source" and "from the content and other circumstances"
surrounding the documents, the court concluded the information
was provided on an inferred assurance of confidentiality"]
[internal quotation marks omitted]).

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 - 26 - No. 56

in circumstances from which such an assurance could be reasonably
inferred" (U.S. Dept. of Justice v Landano, 508 US 165, 172
[1993] [internal quotation marks omitted]; see also Church of
Scientology Intern. v U.S. Dept. of Justice, 30 F3d 224, 238 [1st
Cir 1994] [applying Landano and rejecting several alleged FOIA
confidentiality exemptions on the grounds that the government
failed to establish that the documents withheld came from a
source that had received an express promise of confidentiality,
or that the circumstances warranted implying confidentiality];
Davin v U.S. Dept. of Justice, 60 F3d 1043 [3rd Cir 1995] [same];
Halpern v FBI, 181 F3d 279, 298-300 [2d Cir 1999] [applying
Landano and finding no express promise of confidentiality, but
finding that the circumstances supported some implicit
confidentiality with respect to some of the requested
information]). The Supreme Court has also precisely rejected
respondent's argument here -- that all law enforcement sources
are inherently confidential. Instead, the Court has held that
whether a source is confidential should be determined under a
"particularized approach", which may include consideration of
"the character of the crime" and "the source's relation to the
crime" (508 US at 180,179). This reasoning applies with equal
force to FOIL. Ultimately, a determination of confidentiality
should turn on an evaluation of the facts and circumstances
surrounding the particular source or requested information.

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 - 27 - No. 56
III.
The legislature’s policy of broad public access, as
expressed in FOIL, dictates that the exemption for confidential
sources and information be narrowly circumscribed. Therefore
disclosure under FOIL can only be refused pursuant to section 87
(2) (e) (iii) if the agency presents a "particularized and
specific justification for denying access" (Matter of Capital
Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566
[1986]), based on an express promise of confidentiality to the
source, or by establishing that, under the circumstances of the
particular case, the confidentiality of the source or information
can be reasonably inferred.
Application of this rule is case and information
specific, and depends on the particular facts and circumstances.
In determining whether information obtained in the course of a
criminal investigation should be treated as confidential or
whether a source spoke on the assumption that the source's
identity or statements would remain confidential, courts may
consider, as they deem relevant, such factors as the nature of
the crime, the source of the information in relation to the
crime, and the content of the statements or information. Where
the content of a statement or information and the circumstances
surrounding its compilation by law enforcement convince a court
that its confidentiality can be reasonably inferred, it may be
withheld or released with appropriate redactions pursuant to

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 - 28 - No. 56
section 87 (2) (e) (iii). Otherwise, absent an explicit
assurance of confidentiality, it may not be withheld or redacted
under that FOIL exemption.14
Here, because the Second Department majority
misconstrued the FOIL exemption asserted by respondent, the order
below must be reversed and the matter remitted for consideration
under the correct standard. The People remain free, on remittal,
to present evidence that the documents previously withheld are
exempt under section 87 (2) (e) (iii) in accordance with the
standard articulated in this opinion. Since the Appellate
Division did not reach petitioner's Civil Rights Law argument and
Supreme Court did not review the grand jury minutes in

14
Of course other statutory exemptions may apply. The
legislature has enacted specific provisions to protect witnesses
and the accused from "unwarranted invasion[s] of [their] personal
privacy" (Public Officers Law § 87 [2] [b]) and, in some
circumstances, the disclosure of their identity (see e.g. Civil
Rights Law § 50-b). The FOIL provision at issue here, though,
was not primarily designed to protect victims, witnesses, or
accused persons. As its text and legislative history make clear,
this exemption is designed to balance the public's right to
information with the need to maintain the integrity of police
investigations involving confidential information and sources.
Contrary to the dissent's contention, our rule does not lead
to the conclusion that "witness statements made in connection
with [child sex offense prosecutions will be] routinely
discoverable under FOIL" (dissenting op at 7). As we have
explained, each FOIL request must be analyzed on its own terms,
based on the specific facts and circumstances it presents. For
the same reason, a court analyzing whether an agency's invocation
of section 87 (2) (e) (iii) is justified should not place
"additional weight on the nature of the crime" as a categorical
rule (dissenting op at 6), but must consider the specific facts
and circumstances of each particular case.

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 - 29 - No. 56
determining whether petitioner met his burden to justify access
to the minutes, we decline to reach those questions. Instead, we
consider it prudent under the unique circumstances of this case
to remit them, along with the FOIL matter, to Supreme Court for
its consideration of all these claims.
IV.
We recognize that petitioner seeks these documents to
support his claim of actual innocence and that our decision does
not answer whether respondent may deny disclosure. We are also
acutely aware that petitioner filed his FOIL request years ago
and it remains unresolved, despite the legislature's intention to
provide public access to government documents within a reasonable
time frame. It is our intention that enunciation of the proper
standard and our remittal to Supreme Court should facilitate the
timely adjudication of petitioner's claims.
Accordingly, the order of the Appellate Division should
be reversed, with costs, and the matter remitted to Supreme Court
for further proceedings in accordance with this opinion.

- 29 -
Matter of Friedman v Rice
No. 56

WHALEN, J.(dissenting in part):
I agree with the majority opinion insofar as it holds
that the Appellate Division read the confidentiality exemption of
FOIL (Public Officers Law § 87 [2] [e] [iii]) too broadly; that
witness statements should be protected from disclosure pursuant
to that exemption only where a witness was promised
confidentiality or the circumstances were such that the
confidentiality of the information provided could reasonably be
inferred; and that this proceeding should be remitted for Supreme
Court to determine the applicability of the confidentiality
exemption to the material sought in petitioner's initial FOIL
request under the proper standard. I further agree with the
majority that upon remittal, the Civil Rights Law § 50-b issues
raised by the parties may be considered, and petitioner's request
for disclosure of the grand jury minutes should likewise be
determined following an in camera review of the minutes. I
respectfully dissent, however, from the majority's conclusion
that petitioner was not required to exhaust his administrative
remedies with respect to his request for his "entire case file,"
i.e., documents outside the scope of his initial FOIL request. I
also write separately because I do not fully agree with the

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 - 2 - No. 56
majority's discussion of how an agency can meet its burden of
establishing that information was intended to be confidential for
purposes of the FOIL confidentiality exemption in a case like
this one that involves allegations of sexual offenses committed
against children.
I.
Beginning with the exhaustion issue, I cannot agree
with the majority that this record reflects that it would have
been futile for petitioner to seek his entire case file from the
District Attorney through the FOIL process (see Town of Oyster
Bay v Kirkland, 19 NY3d 1035, 1038-1039 [2012], cert denied 568
US 1213 [2013]; cf. Watergate II Apts. v Buffalo Sewer Auth., 46
NY2d 52, 57 [1978]).1 It is not a fair interpretation of the
District Attorney's FOIL denial letter to say that it "clearly
established that [the District Attorney] would not release any
documents absent a court order" (majority op at 14). Petitioner
asserts that his failure to request the "entire case file"
originally resulted from a lack of information regarding the
distinction between the Review Team and the Advisory Panel, and
that is the only explanation given for the request's expansion
from the original FOIL request to the article 78 petition. Even
accepting, for the sake of argument, the premise that petitioner

1
Because the District Attorney preserved her exhaustion
argument below, it is properly before us as an alternative ground
for an affirmance of the Appellate Division's order in part (see
generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60
NY2d 539, 545-546 [1983]).

- 2 -
 - 3 - No. 56
may have been unaware (through no fault of his own) of the
difference between the Review Team and the Advisory Panel (cf.
Walton v New York State Dept. of Correctional Servs., 8 NY3d 186,
196 [2007] ["hindsight cannot be used to determine whether
administrative steps were futile"]), it is evident that the
District Attorney did not view petitioner's FOIL request as one
for "all documents that would be part of the reinvestigation
process" (majority op at 13) or "the entire case file" as stated
in petitioner's article 78 petition, and did not respond as
though all such documents had been requested.2 Indeed, as the
District Attorney points out in her brief, some items that are
presumably in the case file3 are plainly not within the FOIL
exemptions she invoked in the denial letter, and have since been
made public with the final Conviction Integrity Review report.4

2
The majority presumes that the Advisory Panel had access
to documents from the case file otherwise reachable under FOIL
(majority op at 15 n 9). But it does not follow from the fact
that "the Advisory Panel only had access to certain materials in
the case file because of its special status" that it necessarily
received and considered every remaining piece of disclosable
material in the entire case file. In any event, we need not
speculate, as the sole issue is what material the Advisory Panel
actually received, and whether that material is disclosable under
FOIL. Any remaining items not disclosed to that panel are not
the proper subject of this proceeding.
3
The entire case file is not part of the record before us,
and there is no basis to question the District Attorney's
assertion that it was not before Supreme Court either.
4
The majority's claim that the District Attorney withheld
those items under FOIL (majority op at 15 n 9) presupposes that
she viewed them as within the scope of petitioner's request.

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 - 4 - No. 56
It is likely that there may be documents in petitioner's case
file that are subject to as-yet-uninvoked FOIL exemptions, and
the District Attorney has not yet been afforded the requisite
opportunity to make a record with respect to any such documents
(see Matter of Carty v New York City Police Dept., 41 AD3d 150,
150 [1st Dept 2007]; see generally Matter of Yarbrough v Franco,
95 NY2d 342, 347 [2000]; Watergate II Apts., 46 NY2d at 57). The
majority faults the District Attorney because she has never
"indicated what additional case file material might be protected,
what additional FOIL grounds respondents would have invoked to
prevent their release, or even that respondents would have
invoked other FOIL exemptions at all" (majority op at 15 n 9).
This is precisely because the request for the "entire case file"
was unexhausted, and as a result the District Attorney was never
given the opportunity to do so. Accordingly, I would affirm the
Appellate Division order to the extent that it denied so much of
the petition as sought disclosure under FOIL of documents other
than those provided by the District Attorney to the Advisory
Panel (see 134 AD3d at 831; see generally Matter of Fappiano v
New York City Police Dept., 95 NY2d 738, 749 [2001]).

II.
Turning to the confidentiality exemption, I agree with
the majority that the Appellate Division's analysis -- which held
the exemption applicable to any statement made by a witness who

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 - 5 - No. 56
did not testify at a trial (see 134 AD3d at 828-829) -- had its
roots in a materially different version of FOIL (see Matter of
Moore v Santucci, 151 AD2d 677, 679 [2d Dept 1989], citing Matter
of Knight v Gold, 53 AD2d 694, 694 [2d Dept 1976], lv dismissed
43 NY2d 841 [1978]; see generally Matter of Lesher v Hynes, 19
NY3d 57, 64-66 [2012]), and is irreconcilable with the principle
that FOIL exemptions must be narrowly construed (see Matter of
Data Tree, LLC v Romaine, 9 NY3d 454, 462-463 [2007]; Matter of
Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566
[1986]). I also agree that the exemption should apply to witness
statements only where a witness is promised confidentiality or
the confidentiality of the information provided by the witness
can be reasonably inferred, consistent with federal case law5 and
with Appellate Division cases from outside the Second Department
(see e.g. U.S. Dept. of Justice v Landano, 508 US 165, 172
[1993]; Matter of Exoneration Initiative v New York City Police
Dept., 114 AD3d 436, 440 [1st Dept 2014]; Matter of Carnevale v
City of Albany, 68 AD3d 1290, 1292 [3d Dept 2009]).
While I generally agree with the majority's
identification of factors to consider in evaluating whether
confidentiality should be inferred (majority op at 27-28), I
would place additional weight on the nature of the crime in

5
Federal cases interpreting the Freedom of Information Act
are instructive when interpreting section 87 (2) (e) of FOIL,
which was patterned after its federal counterpart (see Matter of
Madeiros v New York State Educ. Dept., — NY3d —, 2017 NY Slip Op
07209 at *6 [Oct. 17, 2017]; Lesher, 19 NY3d at 64).

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 - 6 - No. 56
proceedings involving sensitive matters such as alleged sexual
offenses committed against children. The United States Supreme
Court noted in Landano that the character of the crime being
investigated may constitute a "generic circumstance[]" from which
"an implied assurance of confidentiality [to witnesses] fairly
can be inferred" (508 US at 179). As a matter of common sense, a
witness who provides a statement alleging that he or she saw a
sexual offense committed against a child does so with the
reasonable expectation that the statement will be kept
confidential "except to the extent . . . necessary for law
enforcement purposes" (Landano, 508 US at 174). The inference of
confidentiality is even stronger when the statement is given by a
child, and stronger still when the child witness is also the
victim of the alleged sexual offense. Where an agency
establishes that material requested under FOIL consists of
statements made by children concerning the investigation of a
claim of sexual abuse, the confidentiality exemption should apply
in the absence of circumstances that demonstrate that
confidentiality was not intended. Notably, child sex offense
prosecutions often end in plea bargains for the very purpose of
protecting victims from having to testify publicly. That purpose
would be subverted if witness statements made in connection with
those prosecutions were routinely discoverable under FOIL and
thus available not only to former defendants like petitioner
seeking to establish their actual innocence but equally to any

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 - 7 - No. 56
member of the public regardless of the purpose for which the
statements are sought (see Matter of Gould v New York City Police
Dept., 89 NY2d 267, 274 [1996]; Matter of John P. v Whalen, 54
NY2d 89, 99 [1981]; Matter of Bellamy v New York City Police
Dept., 59 AD3d 353, 355 [1st Dept 2009]). Nonetheless, because
there has not yet been an analysis of the confidentiality of the
witness statements here under the proper standard, I agree with
the majority that a remittal for that purpose is in order. I
would therefore modify the Appellate Division order by
reinstating so much of the petition as sought disclosure of the
materials provided to the Advisory Panel and the grand jury
minutes, and I would remit the matter to Supreme Court for
further proceedings in accordance with this opinion.
* * * * * * * * * * * * * * * * *

Order reversed, with costs, and matter remitted to Supreme Court,
Nassau County, for further proceedings in accordance with the
opinion herein. Opinion by Judge Rivera. Judges Stein, Fahey,
Feinman and Peters concur. Judge Whalen dissents in part in an
opinion, in which Judge Garcia concurs. Chief Judge DiFiore and
Judge Wilson took no part.

Decided November 21, 2017

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