In the Matter of Jesse Friedman, Appellant,v.Kathleen M. Rice,, Respondent.BriefN.Y.October 18, 2017APL-2016-00072 To be argued by Appellate Division No. 2013-08373 Judith R. Sternberg Nassau County Index No. 13-4015 (15 minutes) COURT OF APPEALS STATE OF NEW YORK In the Matter of JESSE FRIEDMAN, Petitioner-Appellant, -against- KATHLEEN M. RICE, in her official capacity as the NASSAU COUNTY DISTRICT ATTORNEY, Respondent-Respondent. BRIEF FOR RESPONDENT-RESPONDENT MADELINE SINGAS District Attorney, Nassau County Attorney for Respondent-Respondent 262 Old Country Road Mineola, New York 11501 (516) 571-3800 (telephone) (516) 571-3806 (fax) Tammy J. Smiley Daniel Bresnahan W. Thomas Hughes Judith R. Sternberg Assistant District Attorneys of Counsel Brief Completed August 17, 2016 TABLE OF CONTENTS Page Table of Authorities .................................................................................................. i Questions Presented ................................................................................................. v Preliminary Statement ............................................................................................. vi History of the Proceedings The Criminal Investigation And Prosecution ................................................ 1 Capturing the Friedmans And Petitioner’s Motion To Vacate The Judgment Of Conviction ............................................................ 6 The Federal Litigation ................................................................................... 8 The District Attorney’s Re-Investigation ...................................................... 9 Petitioner’s Freedom Of Information Law Request And The Ensuing Litigation ................................................................................ 12 The Instant Appeal ....................................................................................... 19 Point I The District Attorney Appropriately Responded To The FOIL Request; That Part Of The Petition That Requested Disclosure Of The Prosecution’s “Entire Case File” Was Not Included In The FOIL Request, Was Not Administratively Reviewed, Was Not The Proper Subject Of An Article 78 Proceeding, And Was Rightly Dismissed By The Appellate Division ........................... 20 The District Attorney Properly Responded To The FOIL Request......................................................................................................... 21 Petitioner’s Request For The District Attorney’s “Entire File” Was Not Administratively Exhausted, Was Not A Proper Subject For Article 78 Review, And Was Appropriately Dismissed By The Appellate Division ........................................................ 23 Point II The Statements Made By The Child Sex-Crimes Victims To Law Enforcement Officials Were Confidential And Exempt From Disclosure Under The Freedom Of Information Law And Civil Rights Law, And They Were Properly Withheld ............................... 28 The Standard Of Review ............................................................................. 30 The Appellate Division Properly Determined That The Victims’ Unredacted Statements To The Police Were Exempt From Disclosure Under FOIL ............................................................................... 32 Petitioner Has Not Established Good Cause For Disclosure Of Statements Deemed Confidential Under Civil Rights Law § 50-b ............. 41 Point III Petitioner Failed To Establish A Compelling And Particularized Need For Grand Jury Minutes; The Supreme Court Erred In Ordering Wholesale Disclosure Of Minutes It Never Saw ......................... 57 Conclusion ............................................................................................................. 71 i TABLE OF AUTHORITIES CASES New York Bankers Trust Corp. v. New York City Dept. of Finance, 1 N.Y.3d 315 (2003) ................................................................................ 40 Doe v. Lake Grove School, 107 A.D.3d 841 (2d Dept. 2013) ........................... 26 Matter of Aiani v. Donovan, 98 A.D.3d 972 (2d Dept. 2012) ........................... 57 Matter of Beyah v. Goord, 309 A.D.2d 1049 (3d Dept. 2003) .......................... 36 Matter of Bellamy v. New York City Police Dept., 59 A.D.3d 353 (1st Dept. 2009) .............................................................. 31 Matter of Capital Newspapers v. Burns, 67 N.Y.2d 562 (1986) ....................... 30 Matter of Carty v. New York City Police Dept., 41 A.D.3d 150 (1st Dept. 2007) .............................................................. 26 Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007) ........................... 30 Matter of DeOliveira v. Wagner, 274 A.D.2d 904 (3d Dept. 2000) .................. 49 Matter of District Attorney of Suffolk County, 58 N.Y.2d 436 (1983) ...................................................... 57, 58, 61, 62, 67 Matter of Exoneration Initiative v. New York City Police Dept., 114 A.D.3d 436 (1st Dept. 2014) ............................................................ 33 Matter of Exoneration Initiative v. New York City Police Dept., 132 A.D.3d 545 (1st Dept. 2015) ............................................................ 34 Matter of Fappiano v. New York City Police Dept., 95 N.Y.2d 738 (2001) .......................................... 25, 29, 31, 48, 49, 53, 67 ii Matter of Friedman v. Rice, 134 A.D.3d 826 (2d Dept. 2015) .................. passim Matter of Friedman v. Rice, 27 N.Y.3d 903 (2016) .......................................... vii Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267 (1996) ..... 30, 31 Matter of Greene v. Hynes, 2004 WL 1095029 (Sup. Ct. Kings County 2004) ................................................................. 31 Matter of Holmes v. Winter, 22 N.Y.3d 300 (2013) ..................................................... 35 Matter of John P. v. Whalen, 54 N.Y.2d 89 (1981) ..................................... 29, 31 Matter of Johnson v. New York City Police Dept., 257 A.D.2d 343 (1st Dept. 1999) ...................................................... 34, 49 Matter of Karlin v. McMahon, 96 N.Y.2d 842 (2001) ................................ 41, 49 Matter of Lesher v. Hynes, 19 N.Y.3d 57 (2010) ........................................ 22, 23 Matter of Lungen v. Kane, 88 N.Y.2d 861 (1996) ............................................. 57 Matter of Moore v. Santucci, 151 A.D.2d 677 (2d Dept. 1989) ........................ 32 Matter of New York Times Co. v. City of New York Police Dept., 103 A.D.3d 405 (1st Dept. 2013) ...................................................... 39, 40 Matter of North v. Board of Examiners of Sex Offenders of State of New York, 8 N.Y.3d 745 (2007) ............................................. 29 Matter of Taylor v. New York City Police Dept. FOIL Unit, 25 A.D.3d 347 (1st Dept. 2006) .............................................................. 26 Matter of Thomas v. New York City Dept. of Education, 103 A.D.3d 495 (1st Dept. 2013) ............................................................ 36 Matter of Whitley v. New York County District Attorney’s Office, 101 A.D.3d 455 (1st Dept. 2012) ............................................................ 22 People v. Belliard, 20 N.Y.3d 381 (2013) ......................................................... 29 iii People v. Bonelli, 36 Misc.3d 625 (Sup. Ct. Richmond County 2012) ............. 58 People v. DiNapoli, 27 N.Y.2d 229 (1970) ................................................. 63, 65 People v. DiRaffaele, 55 N.Y.2d 234 (1982) ..................................................... 45 People v. Fetcho, 91 N.Y.2d 765 (1998) ............................................... 57, 62, 63 People v. Friedman, 6 N.Y.3d 894 (2006) ..........................................................7 People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014) .................................. 19, 45 People v. Marante, 237 A.D.2d 130 (1st Dept. 1997) ....................................... 58 People v. Martinez, 26 N.Y.3d 196 (2015) ........................................................ 37 People v. Miller, 65 N.Y.2d 502 (1985) ............................................................ 38 People v. Robinson, 98 N.Y.2d 755 (2002) ................................................. 57, 58 People v. Robinson, 87 A.D.2d 877 (2d Dept. 1982) ........................................ 58 People v. Rosario, 9 N.Y.2d 286 (1961) ........................................................... 45 People v. Ross G., 163 A.D.2d 529 (2d Dept. 1990) ............................................3 People v. Thomas, 54 N.Y.2d 338 (1981) ......................................................... 45 Ruggiero v. Fahey, 103 A.D.2d 65 (2d Dept. 1984) ................................... 58, 63 Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52 (1978) ........... 40 Federal Brady v. Maryland, 373 U.S. 83 (1963) ................................ 6, 7, 8, 9, 17, 52, 53 Dept. of Justice v. Landano, 508 U.S. 165 (1993) ............................................. 34 iv Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997)..................................................... 29 Matter of Friedman v. Rehal, 618 F.3d 142 (2d Cir. 2010) ...................... 8, 9, 43 Pope v. United States, 599 F.2d 1383 (5th Cir. 1979) ....................................... 34 United States v. Ruiz, 536 U.S. 622 (2002) ..........................................................7 STATUTES Civil Practice Law and Rules article 78 ....................................................... 23, 24 Civil Rights Law § 50-b .............................................................................. passim Correction Law article 6-C ...................................................................................6 Criminal Procedure Law § 190.25 ............................................................... 14, 23 Public Officers Law § 87 ............................................................................ passim Public Officers Law § 89 ............................................................................. 25, 30 OTHER National Sexual Violence Resource Center, http://www.nsvrc.org/sites/default/files/publications nsvrc factsheet media-packet_statistics-about-sexual-violence_0.pdf. ................................................. 35 v QUESTIONS PRESENTED 1. Was petitioner’s request for the District Attorney’s “entire case file” – a request that was never raised in a Freedom of Information Law request and, therefore, never administratively considered – the proper subject of an article 78 application? 2. Did the Appellate Division reasonably apply a confidentiality exemption to statements given to law enforcement by children who were the victims of sex crimes where none of those victims testified publicly, none authorized release of his statement, and many of whom made it clear that they did not wish to have their identities made public? 3. Is it reasonable to attribute to the Appellate Division the creation of a new Freedom of Information Law exemption applicable to all documents and records created in a criminal investigation where the court never suggested such an exemption? 4. Does petitioner establish good cause for the disclosure of material that would tend to identify victims of sex offenses by his assertions that such material might possibly contain information with which he might attack the sufficiency of the pre-plea proceedings in his criminal case, where he has already asserted that he has overwhelming evidence of his innocence? 5. Has petitioner satisfied the requirement that he establish a particularized and compelling need for grand jury minutes, and that his need outweighs the public’s strong interest in maintaining grand jury secrecy, where he pleaded guilty and where he has himself asserted that he does not need those minutes? vi COURT OF APPEALS State of New York _______ In the Matter of JESSE FRIEDMAN, Petitioner-Appellant, -against- KATHLEEN M. RICE, in her official capacity as the NASSAU COUNTY DISTRICT ATTORNEY, Respondent-Respondent. _______ RESPONDENT-RESPONDENT’S BRIEF _______ PRELIMINARY STATEMENT By judgment entered August 23, 2013, the Supreme Court, Nassau County (Winslow, J.), granted a petition filed pursuant to CPLR article 78, following the partial denial of petitioner’s request for information pursuant to the Freedom of Information Law. Supreme Court ordered the District Attorney to provide petitioner with “every piece of paper that has been generated in the matter of People against Jesse Friedman.” Proceedings on the order were stayed, pending the District Attorney’s appeal of that judgment. On December 9, 2015, the Appellate Division, Second Department, with one justice dissenting, reversed the judgment of the Supreme Court, denied the petition, and dismissed the proceeding. Matter of Friedman v. Rice, 134 A.D.3d 826 (2d Dept. 2015). On April 5, 2016, petitioner vii was granted leave to appeal to this Court. Matter of Friedman v. Rice, 27 N.Y.3d 903 (2016). 1 HISTORY OF THE PROCEEDINGS The Criminal Investigation and Prosecution In November 1987, after a three-year investigation of Arnold Friedman’s involvement with child pornography, federal agents executed a search warrant at the Friedmans’ Great Neck home. Child pornography was found during the search, as was a list of children who were students in an after-school computer class taught by Arnold Friedman in his home (A*0311-12).1, 2 Arnold Friedman’s son, petitioner Jesse Friedman, helped teach these classes between 1984 and 1987. Arnold Friedman was indicted on federal child pornography charges, and the Nassau County Police Department undertook an investigation to determine whether he had abused any of the children in his classes. The first child interviewed by the police reported that Arnold Friedman showed him pornography and touched him inappropriately. Other children and their parents were questioned, and more children reported being shown pornographic material and being touched 1 References preceded by A are to the pages of the appendix filed by petitioner. References preceded by A* are to the pages of respondent’s supplementary appendix for sealed material. References preceded by RA are to respondent’s supplementary appendix. 2 When referring to the District Attorney’s Conviction Integrity Review Report, respondent has cited to the unredacted report contained in the supplementary appendix for sealed material. The redacted version of the report, which was released to the public, is found at A1977-2155 of petitioner’s appendix. 2 inappropriately. Some children reported far more serious abuse and implicated petitioner in some of the acts (A*0316-17, A*0458). On November 25, 1987, the Nassau County Police executed their own search warrant for the Friedman home. Pornographic videogames, sexual paraphernalia, photographs of nude children, movie cameras, Polaroid cameras, pornographic movies, and an advertisement for “homosexuality with boys” were found in the home (A*0319-20). Both Arnold and Jesse Friedman were arrested and the investigation continued with the interviewing of other children. On December 7, 1987, based on the testimony of some of these children, the grand jury handed down indictment number 67104 (A0485-99), charging Arnold Friedman with multiple counts of sodomy, sexual abuse, and other offenses. Petitioner was charged with three counts of sexual abuse in the first degree, five counts of endangering the welfare of a child, and two counts of using a child in a sexual performance (A*0325-26). On February 1, 1988, a different grand jury handed down indictment 67430 (A0500-23), based on the testimony of witnesses who had not testified before the first grand jury. That indictment charged Arnold and Jesse Friedman with multiple 3 counts of sodomy, sexual abuse in the first degree, and attempted sexual abuse in the first degree (A*0326). On March 25, 1988, Arnold Friedman pleaded guilty to multiple counts of sodomy and related charges and, on May 13, 1988, was sentenced to a term of imprisonment of ten to thirty years. That sentence was ordered to run concurrently with a ten-year term of imprisonment imposed on March 28, 1988, by the United States District Court (Costantino, J.), pursuant to Arnold Friedman’s plea of guilty in that court to charges of using the mails to send and receive child pornography (A*0328; A0483-84). In June 1988, after further investigation, Ross G., a friend of petitioner, was arrested based on statements implicating him in some of the crimes committed by Arnold and Jesse Friedman. Ross G. cooperated with the prosecution in the case against petitioner in exchange for a favorable plea. He ultimately pleaded guilty to sodomy and other charges and, after an appeal (People v. Ross G., 163 A.D.2d 529 [2d Dept. 1990]), was adjudicated a youthful offender (A*0335-37). 4 On November 7, 1988, a third indictment (indictment number 69783) (A0524-97) was handed down against petitioner based on evidence discovered since his second indictment. Some of the witnesses had previously given grand jury testimony against either Arnold or Jesse Friedman. The third indictment charged petitioner with 127 counts of sodomy, nine counts of sexual abuse in the first degree, and other offenses (A*0338-39). The charges against petitioner from all three indictments emanated from fourteen complaining witnesses (A*0314). Over twenty charges were dismissed by the County Court, including the sole charge involving one complainant, leaving thirteen complaining witnesses. In none of the indictments were the complainants’ real names used. All were identified by pseudonyms using the last name “Doe.” In preparation for trial, petitioner’s then-attorney was given the names of the complaining witnesses (A*0346). In the course of his investigation, counsel met with one non-complaining witness and his mother, who showed counsel a videotape she had taken of the police interviewing her son (A*0345).3 Defense counsel also had petitioner meet with mental health professionals to be evaluated. One doctor retained by petitioner described him as a “psychopath,” “capable of committing the 3 The videotape no longer exists; only counsel’s handwritten notes about the videotape survive. Petitioner’s typed version of those handwritten notes (A0189-90) should not be mistaken for a transcript of the videotape. 5 crimes with which he was charged” (A*0343). A polygraph test was administered to petitioner at the request of his counsel. The result of this test was that petitioner “was not truthful” (A*0344). On December 20, 1988, petitioner pleaded guilty to multiple counts of sodomy, sexual abuse, use of a child in a sexual performance, and endangering the welfare of a child in satisfaction of all three indictments, and he waived his right to appeal (A*0347; RA5). He was sentenced to concurrent indeterminate terms of incarceration, the longest of which was six to eighteen years.4 Shortly after his sentencing, petitioner appeared on the Geraldo Rivera television program, where he admitted fondling the children, posing naked with them for photographs, and engaging in oral sex with them in his father’s computer classes, and said that his father forced him to participate in this behavior (A*0349-51; A0923). 4 Because petitioner never appealed from his judgment of conviction, the minutes of his plea and sentencing were not transcribed. In 2004, the People attempted to obtain a transcription of the plea proceedings and were advised by the chief court reporter for the County Court, Nassau County, that the stenographer assigned to Friedman’s proceedings had died, that his records could not be located, and that it was no longer possible to obtain a transcription of his plea or sentencing proceeding. Since then, a copy of the sentencing minutes has been obtained (RA3-36). 6 Petitioner was released from prison in January 2002, and was adjudicated a level three sex offender under the Sex Offender Registration Act (Correction Law article 6-C) (A*0356). Capturing the Friedmans and Petitioner’s Motion to Vacate the Judgment of Conviction In 2003, a film entitled Capturing the Friedmans was released. That film purported to reflect the police investigation that eventually led to the indictments against petitioner and his father and the circumstances that led to their guilty pleas. In fact, the film distorted and misrepresented crucial facts. Following the release of this “documentary,” and in substantial reliance upon it, petitioner commenced state and federal litigation through which he sought to establish that his indictments and guilty plea were the products of unconstitutional state action. In January 2004, fifteen years after he entered his guilty plea, petitioner filed a motion pursuant to Criminal Procedure Law article 440. He alleged that, prior to pleading guilty, he was entitled to disclosure of certain information pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and that the prosecutor’s failure to have disclosed this information to him required vacatur of the judgment. Specifically, petitioner claimed that police investigators used improper tactics when questioning potential witnesses, that some complainants initially denied that they had been 7 victims of abuse or that they had witnessed any criminal behavior, and that one complainant underwent hypnosis before claiming that he had been abused. This, petitioner argued, rendered the complainants’ statements unreliable and would have rendered the witnesses subject to impeachment had there been a trial. He further argued that, had he been aware of this information, he would not have accepted the negotiated plea. The People opposed the motion, arguing that, by virtue of his guilty plea, petitioner had no valid Brady claim, that petitioner’s factual allegations were not credible, and that, in any event, petitioner failed to credibly establish that he would have foregone a generous plea bargain and gone to trial had he been aware of the factual allegations he belatedly raised. On January 6, 2006, the County Court, Nassau County (LaPera, J.), denied petitioner’s motion. Relying on United States v. Ruiz, 536 U.S. 622 (2002), the court found that no hearing was necessary as to any issue of fact because the material allegedly withheld from petitioner was impeachment material to which he was not entitled prior to the entry of a guilty plea. Petitioner’s application to appeal to the Appellate Division, Second Department, was denied on March 10, 2006. His application to appeal to this Court was dismissed on May 4, 2006. People v. Friedman, 6 N.Y.3d 894 (2006). 8 The Federal Litigation In papers dated June 23, 2006, petitioner applied for a writ of habeas corpus from the United States District Court, Eastern District of New York, again seeking relief on the ground that the prosecution had failed to provide him with material to which he claimed to have been entitled pursuant to Brady v. Maryland, and renewing the allegations made in his CPL 440 motion. Respondent moved for dismissal of the petition on the ground that it was untimely. On January 4, 2008, the court dismissed the petition as time-barred. It granted a certificate of appealability. The sole issue before the United States Court of Appeals, Second Circuit, was the timeliness of petitioner’s Brady claim alleging that a witness was hypnotized prior to remembering abuse. (This allegation of hypnosis was demonstrably untrue [A*0383-84].) The court found the claim time-barred. And while it found that a time bar could be excused upon petitioner’s showing of “actual innocence” – a claim which the court acknowledged petitioner “did not expressly raise” – it stated that it need not resolve the time-bar issue because, even if the petition were deemed timely, “petitioner’s Brady claim fails on the merits.” Matter of Friedman v. Rehal, 618 F.3d 142, 152 (2d Cir. 2010). 9 Nonetheless, apparently accepting Capturing the Friedmans as an accurate factual account, the majority of the court stated that “[t]he record here” – presumably the movie – “suggests ‘a reasonable likelihood’ that Jesse Friedman was wrongfully convicted” and it “hope[d]” that the District Attorney would undertake “a complete review of the underlying case.” Id. at 159-60. Judge Raggi concurred in so much of the court’s opinion as held that petitioner’s Brady claim was both untimely and meritless. She noted, however, that “[t]o reach these conclusions, the court need not engage in a lengthy discussion of the facts and circumstances that Friedman asserts led to his conviction, much less assume the truth of those facts or the misconduct of police officers, prosecutors, defense counsel, and the presiding state court judge before a hearing.” Id. at 161. And while granting that the facts alleged “may well warrant further inquiry by a responsible prosecutor’s office,” she would not “predict whether the outcome of any such inquiry will be favorable to petitioner, whose conviction is based on a plea of guilty that he thereafter publicly confirmed.” Id. at 161-62. The District Attorney’s Re-Investigation In 2010, in response to the suggestion of the United States Court of Appeals, the District Attorney of Nassau County undertook a re-investigation of the Friedman case to determine whether, notwithstanding his guilty plea and his subsequent public 10 confirmation of guilt, petitioner was wrongfully convicted. To that end, the District Attorney assigned a team of senior prosecutors (the “Review Team”) to conduct the investigation. She also appointed an Advisory Panel of four independent experts (the “Advisory Panel” or “Panel”) to render advice and offer expertise to the Review Team, and whose “limited role” (A*0284) focused on “‘process’ issues” concerning the manner in which the investigation was being conducted (A*0286). The Panel members were: Mark F. Pomerantz, retired litigation partner at Paul, Weiss, Rifkin, Wharton & Garrison, LLP, and former Assistant United States Attorney in the Southern District of New York and head of its Criminal Division; Patrick J. Harnett, 32-year veteran of the New York City Police Department, served as commanding officer of the Major Case Squad and Chief of the Hartford Police Department; Susan Herman, professor in the Department of Criminal Justice at Pace University and former executive director of the National Center for Victims of Crime; and Barry Scheck, professor of law at Benjamin Cardozo School of Law, co-founder and director of the Innocence Project, where he focuses on the exoneration of wrongly convicted individuals, and member of the State's Commission on Forensic Science. Each Panel member signed an oath of confidentiality and agreed not to disclose any of the documents reviewed in connection with the re-investigation. Upon appointment of the Advisory Panel, petitioner’s counsel praised the members as a “distinguished” group that “would not be a rubber stamp for anyone’s agenda.” He 11 continued that, “from the perspective of a defendant looking for justice, it really could not be better” (A*0360). During the course of the re-investigation, several of the victims who came forward expressed grave concerns about maintaining their privacy. The abuse they suffered was, and continued to be, humiliating, and in some cases they had not told even close family members about what had happened to them. Some made it clear that although they were willing to assist in the District Attorney’s re-investigation of this matter, they did not want to be publicly identified. As commented on by the Advisory Panel, “a publicity campaign was launched attacking the original prosecution,” and, “in the context of this campaign,” some victims and witnesses were approached by the producers of Capturing the Friedmans and encouraged to recant their incriminating testimony. This, the Panel noted, complicated the Review Team’s ability to assess credibility and, in some cases, created difficulties in being able to speak to witnesses at all (A*0286-87). In June 2013, the District Attorney completed her re-investigation and issued a 155-page report. Accompanying that report was an appendix of over 100 documents that the Review Team had examined and considered in arriving at its determination that there was no reasonable probability that Jesse Friedman was 12 wrongfully convicted. Members of the Advisory Panel had access to documents in the appendix and others, but did not review, or have access to, every record available to the Review Team. Some records (i.e., grand jury minutes) were deemed confidential, and some were not relevant to the investigation. Names of victims were redacted from any witness statements reviewed by the Panel members (A1875-82). The conclusion of the District Attorney, based on all of the evidence gathered and examined by the Review Team, was that petitioner was not wrongfully convicted (A*0460). And while the Advisory Panel noted that it was not its role “to make an ultimate judgment about Jesse Friedman’s culpability or make factual findings,” it nonetheless believed itself “obligated” to state that “the conclusions expressed in the Review Team’s Report are reasonable and supported by the evidence it cites” (A*0286). Petitioner’s Freedom of Information Law Request and the Ensuing Litigation On September 19, 2012, in the midst of the re-investigation, petitioner made a request pursuant to the Freedom of Information Law (FOIL). He sought two sets of documents: 1) all records that were provided to the “Friedman Case Review Panel”; and 2) all records relevant to whether the members of the Panel “are or are 13 not ‘members of the general public’ for purposes of the New York Freedom of Information Law and Civil Rights Law § 50-b” (A0001). By letter dated October 12, 2012, the District Attorney denied petitioner’s first request in its entirety and gave detailed reasons for that denial. The letter to petitioner explained that, pursuant to Civil Rights Law § 50-b, any records that would tend to identify a victim of a sex crime were confidential and could not be released to the public (A0007), and that, pursuant to Public Officers Law § 87(2)(e)(iii), confidential witness statements compiled for law enforcement purposes were exempt from disclosure, unless those witnesses testified at trial (A0009). The District Attorney’s letter did not cite the privacy exemption in Public Officers Law § 87(2)(b), but discussed the obvious privacy considerations that were implicated by petitioner’s request (A0010). The District Attorney also relied on Public Officers Law § 87(2)(e)(i) as a basis for denying the request because the re- investigation was not yet complete, and premature release of records would have interfered with that investigation (A0009). In response to petitioner’s request for records addressing the Panel members’ status, petitioner was offered a copy of the confidential agreement that the members signed. It was explained that the Panel members’ standing was similar to that of any 14 other experts or consultants who assisted the District Attorney’s office in an investigation or prosecution. While acting in that role, they were not functioning as members of the general public (A0009-10). On November 13, 2012, petitioner filed an administrative appeal from the denial of his FOIL request (A0011-14). Although petitioner took issue with the District Attorney’s application of the FOIL exemptions discussed above, he did not expand the scope of his request. No request was made for the “entire case file” of the original Friedman investigation. In a letter dated December 3, 2012, the District Attorney’s FOIL Appeals Officer affirmed the denial of petitioner’s FOIL request for documents provided to the Friedman Advisory Panel (A0015-17). By notice of petition dated April 3, 2013, petitioner filed a proceeding pursuant to CPLR article 78. He sought the material previously identified in his FOIL request and, for the first time, requested disclosure of the entire case file of the District Attorney’s original investigation of his crimes, without regard to the nature or subject of the records therein. Petitioner also sought an order under Civil Rights Law § 50-b(2)(b), directing the District Attorney to disclose records that are confidential under that statute because they would tend to identify the victim of a sex crime. Lastly, petitioner sought an order pursuant to Criminal Procedure Law 15 § 190.25(4), directing the District Attorney to disclose grand jury testimony and records related to his indictments (A0018-0053). Subsequent to this filing, Supreme Court (Winslow, J.) called the parties to a conference in chambers. During the course of this conference, the court ordered petitioner’s counsel to serve his petition on each of the fourteen complainants in the original prosecution, pursuant to Civil Rights Law § 50-b(2)(b). Three complainants later responded directly to the court, two by letter and one through counsel. All invoked their right to confidentiality and were insistent that they did not want their identities revealed (A2254-55, A*2293-95). The District Attorney’s conviction integrity review report was published in June 2013. Judge Winslow immediately instructed the District Attorney to provide him with unredacted copies of the report and appendix. That material was provided. In response to an additional instruction by the court, the District Attorney provided unredacted witness statements (A*1378-1826) and a chart, identifying by name the witnesses who were identified only by number in the report and by “Doe” in the 16 indictments (A*1827).5 In a supplemental submission dated June 27, 2013, petitioner alleged five “deficiencies” in the District Attorney’s report (A1828). The District Attorney filed papers opposing the petition on the grounds that had been discussed in the denial of the FOIL request and other grounds. She argued that petitioner’s request for the entire Jesse Friedman file was unexhausted and his request for records protected by Civil Rights Law § 50-b and grand jury secrecy should be heard by the court having jurisdiction over the criminal charges. The District Attorney further argued that the statements of non-testifying witnesses made to law enforcement officials were exempt from disclosure under FOIL, and that petitioner had not shown good cause for disclosure of records identifying sex-crimes victims or a compelling and particularized need for the release of grand jury minutes (A1938-75). Petitioner filed a reply, attacking the District Attorney’s report and specifying, for the first time, the manner in which he claimed he could use the 5 The sealed appendix provided to this Court contains the unredacted report, witness statements taken during the initial investigation of Arnold and Jesse Friedman, a naming chart, and other confidential records that were provided to the Supreme Court and were made part of the record on appeal in the Appellate Division. The Supreme Court did not request grand jury minutes or “the entire case file” concerning petitioner, and that material was not provided to that court or the Appellate Division and is not included in any of the appendices before this Court. 17 material he hoped to find in the District Attorney’s files. Petitioner’s reply included an affidavit by Kenneth Lanning, a consultant concerning crimes against children. Lanning, who was quoted in the report, took issue with some of the report’s statements (A2199-2205). On August 22, 2013, the parties appeared before the Supreme Court. During lengthy argument, the court expressed doubts as to petitioner’s guilt of the crimes to which he pleaded guilty and its belief that petitioner had been denied Brady material prior to the entry of that plea, and deemed these relevant considerations in the determination of the petition (A2255, A2277, A2279-80). The court further made clear its belief that petitioner’s status as a registered sex offender, and the restraints imposed on him as a result of that status, were relevant to the issues of whether there were criminal aspects to the FOIL litigation before it and to whether otherwise- confidential material should be disclosed (A2268-69, A2273). Having previously misapprehended the scope of petitioner’s FOIL application as a request for “the full records maintained in connection with the Jesse Friedman case” (A1872), the court ordered the District Attorney to provide petitioner with “every piece of paper that has been generated in the matter of People against Jesse Friedman,” redacting only the names of the three complainants who had contacted the court (A2288). 18 Respondent filed a notice of appeal to the Appellate Division, Second Department, and sought and obtained a stay of the Supreme Court’s order. In the Appellate Division, the District Attorney argued: because petitioner’s FOIL request did not seek disclosure of his “entire case file,” the request for that information, first made in the course of his article 78 proceeding, was unexhausted and should not have been entertained by the Supreme Court; petitioner had not overcome the confidentiality provisions found in the Public Officers Law and Civil Rights Law; and, he failed to demonstrate a compelling and particularized need for grand jury testimony. While the Appellate Division ruled that there was no procedural bar to the review of petitioner’s request for unredacted witness statements and grand jury minutes (Matter of Friedman v. Rice, 134 A.D.3d 826, 827-28 [2d Dept. 2015]), it ruled that the statements were confidential and exempt from disclosure under FOIL (id. at 828-29) and that petitioner had failed to make a compelling and particularized need for disclosure of grand jury minutes (id. at 831). The Appellate Division, with 19 one justice dissenting, reversed the Supreme Court’s judgment, denied the petition, and dismissed the proceeding on the merits.6 This Court granted leave to appeal. The Instant Appeal Petitioner argues, as he did in the courts below, that his claim of wrongful conviction establishes good cause for the disclosure of witness statements that would otherwise be undisclosable pursuant to the Civil Rights Law, as well as a compelling and particularized need for grand jury minutes that would otherwise be undisclosable pursuant to the Criminal Procedure Law. Because petitioner establishes neither, and because his request for the District Attorney’s “entire case file” was unexhausted, the order of the Appellate Division should be affirmed. 6 During the pendency of the appeal before the Appellate Division, petitioner filed a motion to overturn his conviction on several grounds, including actual innocence (RA37-198). The District Attorney filed an affirmation and memorandum of law in opposition (RA199- 243). The County Court denied petitioner’s motion to vacate to the extent that it was predicated on allegations of knowing use of false testimony before the grand jury and improper judicial coercion (RA246-53). But, recognizing the extremely low threshold established by the Second Department to warrant a hearing on actual innocence (People v. Hamilton, 115 A.D.3d 12, 27 [2d Dept. 2014]) (“a sufficient showing of possible merit”) respondent did not oppose such a hearing (RA218-19), the court ordered a hearing on petitioner’s claim of actual innocence (RA253), and that hearing is pending. 20 POINT I The District Attorney Appropriately Responded To The FOIL Request; That Part Of The Petition That Requested Disclosure Of The Prosecution’s “Entire Case File” Was Not Included In The FOIL Request, Was Not Administratively Reviewed, Was Not The Proper Subject Of An Article 78 Proceeding, And Was Rightly Dismissed By The Appellate Division. Petitioner submitted a FOIL request seeking two limited types of documents: 1) all records provided to the “Friedman Case Review Panel” and 2) records relevant to whether the Panel members were “‘members of the general public’ for purposes of the New York Freedom of Information Law and Civil Rights Law § 50-b” (A0001). In response to the latter request, the District Attorney explained the Panel members’ standing and made available a copy of the oath of confidentiality signed by each member (A0009-10). Petitioner’s request for all records provided to the Panel was denied, and the District Attorney explained the reasons for the denial. Petitioner filed an administrative appeal in which he took issue with the District Attorney’s application of the FOIL exemptions, but he did not expand the scope of his request (A0011-14), and the District Attorney’s FOIL Appeals Officer affirmed her denial of petitioner’s request for documents provided to the Advisory Panel (A0015-17). The first time petitioner requested the District Attorney’s entire case file was in his article 78 proceeding, well after he filed his FOIL request and his appeal from 21 the partial denial of that request. In response, the District Attorney argued that this new request was unexhausted. Nevertheless, the Supreme Court granted petitioner’s request. The Appellate Division reversed the judgment of the Supreme Court and dismissed the petition. Petitioner now argues that the District Attorney’s response to his FOIL application was insufficient. He further argues that, in its review of this matter, the Appellate Division improperly expanded the exemptions created by FOIL. This is not what happened. The prosecutor’s response to petitioner’s request was sufficient and appropriate, and the Appellate Division correctly applied the law when it declined to review a request for disclosure that could have been – but was not – properly raised in a FOIL request. The District Attorney properly responded to the FOIL request. In a lengthy response to petitioner’s FOIL application, the District Attorney gave detailed reasons for her denial of petitioner’s request for all the documents that had been provided to the Advisory Panel. She first identified the categories of records available to the Panel (“redacted witness statements, summaries of interviews conducted with fact witnesses, our analysis regarding witness interviews and other evidence, and inter- and intra-agency communications” [A0007]), and 22 cited both case law and statutes (Public Officers Law § 87[2][a], [2][e][iii], [2][g] and Civil Rights Law § 50-b) that precluded disclosure of the records petitioner sought (A0007-09). And because petitioner’s FOIL letter made reference to grand jury minutes (although it did not specifically request those minutes) (A0003), the District Attorney advised petitioner that grand jury minutes were not provided to the Advisory Panel; that the District Attorney was, in any event, statutorily precluded from releasing grand jury minutes; and that, in order to obtain those minutes, petitioner would have to seek a court order and demonstrate a compelling and particularized need (A0009).7 This was not “a blanket, unparticularized claim of exemption” (petitioner’s brief at 21). It was an appropriate identification of the types of materials that were provided to the Panel, accompanied by specific references to the prohibitions against disclosure of those materials. See Matter of Lesher v. Hynes, 19 N.Y.3d 57, 67 (2010) (District Attorney sustained his burden to “articulate a factual basis for the exemption” where he identified “the categories of records that he sought to withhold” and “identified the generic harm that disclosure would cause”); Matter of 7 In response to the FOIL request, the District Attorney also relied on Public Officers Law § 87(2)(e)(i) as a basis for denying the request because, at the time of the request and the District Attorney’s response, the re-investigation was not yet complete, and premature release of records would have interfered with that investigation (A0009). Upon release of the report, that objection to disclosure was withdrawn. 23 Whitley v. New York County District Attorney’s Office, 101 A.D.3d 455 (1st Dept. 2012) (where “[r]espondents generically identified the kinds of documents sought and the risks of disclosing the documents,” the court rejected the contention that respondents “were required to set forth particularized findings about whether the FOIL exemption at issue applied to each responsive document”) (citing Lesher). There is simply no merit to petitioner’s claim that the District Attorney failed to adequately respond to his FOIL request. Petitioner’s request for the District Attorney’s “entire file” was not administratively exhausted, was not a proper subject for article 78 review, and was appropriately dismissed by the Appellate Division. The District Attorney has never disputed the propriety of a CPLR article 78 proceeding to review the denial of petitioner’s requests for disclosure of the specific items requested in his FOIL request, and petitioner’s request for disclosure of the grand jury minutes was properly made to the court, rather than as part of a FOIL request addressed to the District Attorney (CPL § 190.25[4][a]). However, that part of the article 78 application that sought an order compelling disclosure of the “entire case file” of the prosecution’s initial criminal investigation (A0025) was not properly the subject of the article 78 proceeding because that request was not included in petitioner’s FOIL request, and petitioner had never asked for these materials prior to instituting the article 78 proceeding. For that reason, his sweeping 24 application was unexhausted, was never administratively reviewed or determined, and presented no administrative decision for the Supreme Court’s review pursuant to article 78. Notwithstanding the fact that petitioner’s FOIL request had not sought disclosure of the District Attorney’s entire case file, the Supreme Court determined that it had. It stated that the article 78 proceeding was a reaction to “a refusal by the [District Attorney] to permit a FOIL . . . review of the full records maintained in connection with the Jesse Friedman case” (A1872). The Supreme Court thereafter both entertained petitioner’s unexhausted request and ordered the disclosure of “every piece of paper that has been generated in the matter of People against Jesse Friedman,” allowing redaction of no more than the names of the three complainants who had responded to the court (A2288-89). Appealing to the Appellate Division, the District Attorney again argued that petitioner had failed to exhaust his administrative remedies concerning anything more than the items specified in his original FOIL request. That court, unlike the Supreme Court, acknowledged that the petition sought the disclosure of certain documents that were not within the scope of the FOIL request and acknowledged the doctrine of exhaustion of administrative remedies. It ruled, however, that insofar 25 as petitioner sought disclosure of unredacted witness statements and grand jury minutes, his request was not barred by his failure to exhaust administrative remedies because, as to those materials, it was clear from the correspondence between the prosecutor and petitioner that a FOIL request “would have been futile.”8 Friedman, 134 A.D.3d at 827-28. The court reviewed the request for unredacted witness statements and grand jury minutes, but did not address petitioner’s request for the entirety of the District Attorney’s file. That action was correct. Putting aside the question of the merits of petitioner’s request for the “entire case file,” the request itself was not properly the subject of petitioner’s article 78 application because there had been no agency or administrative decision for the Supreme Court to review. Never before the filing of his article 78 application had petitioner requested these materials. For that reason, his broad application had never been administratively reviewed, was unexhausted, and was not properly before the Supreme Court. See Public Officers Law § 89(4)(b); Matter of Fappiano v. New York City Police Dept., 95 N.Y.2d 738, 749 (2001) (in article 78 proceeding to compel disclosure of “lot numbers” of photographs introduced into evidence at 8 In the correspondence denying petitioner’s FOIL request and his appeal from that denial, petitioner was repeatedly advised that there were statutory prohibitions specifically precluding the District Attorney from disclosing grand jury records or any records that would tend to identify a victim of sex crime (A007-09, A0015-16). 26 petitioner’s criminal trial, “[t]he lot numbers requested are not here discoverable since they were not originally requested” in petitioner’s FOIL request); Doe v. Lake Grove School, 107 A.D.3d 841, 842-43 (2d Dept. 2013) (FOIL requestor must exhaust administrative remedies before seeking judicial redress); Matter of Carty v. New York City Police Dept., 41 A.D.3d 150 (1st Dept. 2007) (motion to amend petition to seek additional material not previously requested was “properly denied for petitioner’s failure to exhaust administrative remedies”); Matter of Taylor v. New York City Police Dept. FOIL Unit, 25 A.D.3d 347 (1st Dept. 2006) (with respect to petitioner’s FOIL request, “the petition was properly dismissed for failure to exhaust administrative remedies”). The possibility, or even probability, that a FOIL request for the District Attorney’s “entire file” would not have been entirely fruitful is not a justification for petitioner’s complete failure to comply with statutory procedural requirements. It did not entitle petitioner to bypass the FOIL provisions, which would have resulted in an appropriate record for review, and, instead, immediately seek judicial intervention. Indeed, because petitioner’s FOIL request did not seek “every piece of paper” in the District Attorney’s file, “every piece of paper” was not scrutinized by the District Attorney to determine disclosability, and there was, therefore, no administrative determination for the Supreme Court to review. And, because there 27 was no administrative determination, and because the Supreme Court never saw the District Attorney’s entire case file, there was no way for that court to determine if the records were subject to disclosure under FOIL. The failure to exhaust, alone, mandated dismissal of the portion of the petition that sought disclosure of the District Attorney’s “entire file” of the initial investigation of Jesse Friedman, and the Appellate Division acted appropriately in reversing the lower court’s order. That action reflected no more than the application of well-established rules of law, not what petitioner asserts was an impermissible expansion of FOIL exemptions.9 9 Petitioner’s argument concerning this assertion is discussed more fully infra at 40-42. 28 POINT II The Statements Made By The Child Sex-Crimes Victims To Law Enforcement Officials Were Confidential And Exempt From Disclosure Under The Freedom Of Information Law And Civil Rights Law, And They Were Properly Withheld. Petitioner filed a FOIL request, seeking disclosure of the materials provided to the Panel appointed to advise the District Attorney’s Review Team. The District Attorney delineated the four categories of information into which those materials fell, and refused disclosure – not as a matter of discretion, but on the ground that Civil Rights Law § 50-b precludes the disclosure of any document which tends to identify a victim of a sex offense (A1007). The District Attorney further cited case law from the Appellate Division, Second Department, establishing that, pursuant to Public Officers Law § 87(2)(e)(iii), these witnesses’ confidential statements were exempt from disclosure because the witnesses never testified at trial (A1009). Petitioner appealed to the Supreme Court. That appeal was civil in nature – not, as the Supreme Court characterized it, “a continuation of a hearing commenced at the beginning of 2003” (A2254), apparently a reference to petitioner’s 2004 motion filed pursuant to CPL § 440.10, a motion which had been denied years earlier. The issue before the Supreme Court should have been whether the District Attorney properly applied the appropriate statutes and case law in denying petitioner access to certain materials he had requested pursuant to FOIL, as well as whether 29 petitioner had demonstrated “good cause” for disclosure of material deemed confidential pursuant to Civil Rights Law § 50-b – not, as that court seemed to view it, the propriety of “every single aspect [of] the conviction process” (A2269). Nonetheless, the court treated the proceeding as if it were, in fact, “a continuation” of the long-closed criminal proceedings because, as a level three sex offender, petitioner was not, in the court’s view, “free” (A2273), and because “his jail sentence continued to this very day” (A2268). Contrary to Supreme Court’s view, a FOIL request by a petitioner who was once a criminal defendant does not transform a subsequent article 78 proceeding into a continuation of the long-closed criminal matter (Matter of John P. v. Whalen, 54 N.Y.2d 89, 99 [1981] [“the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and is neither enhanced nor restricted because he is also a litigant or potential litigant”] [internal citations omitted]; accord Matter of Fappiano v. New York City Police Dept., 95 N.Y.2d 738, 748 [2001]), and the registration requirement attendant upon an adjudication under the Sex Offender Registration Act is not a criminal sentence (People v. Belliard, 20 N.Y.3d 381, 386 [2013]; Matter of North v. Board of Examiners of Sex Offenders of State of New York, 8 N.Y.3d 745, 752 [2007] [citing Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997)]). This misperception of both the nature of the litigation and the 30 issues relevant to a proper determination of that litigation, as well as the disregard of relevant case law, rendered the Supreme Court’s determination erroneous. Upon review in the Appellate Division, that determination was reversed, and that reversal should be affirmed. The Standard of Review In the context of an article 78 proceeding seeking review of the denial of a FOIL request, the party claiming exemption from disclosure of a particular document “carries the burden of demonstrating that the exemption applies.” Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462 (2007) (citing Public Officers Law § 89[4][b]). The bases for exemptions must be specified and exemptions must be narrowly construed. See Matter of Gould v. New York City Police Dept., 89 N.Y.2d 267, 275 (1996); Matter of Capital Newspapers v. Burns, 67 N.Y.2d 562, 566 (1986). The District Attorney satisfied those standards. As discussed in Point I, in detailed letters in response to both petitioner’s FOIL application and then in reply to his appeal from the denial of much of his request, the District Attorney generally identified the materials provided to the Panel, and specifically identified the exemptions that prevented her from disclosing those records to petitioner. 31 Those relevant FOIL exemptions do not lose their applicability because a petitioner claims, as petitioner here does, that the materials he seeks might support litigation attempting to overturn his conviction. It is well established that “access to government records does not depend on the purpose for which the records are sought.” Matter of Gould v. New York City Police Dept., 89 N.Y.2d at 274; accord Matter of Bellamy v. New York City Police Dept., 59 A.D.3d 353, 355 (1st Dept. 2009) (error to order disclosure of material statutorily exempt from FOIL mandates on the ground that petitioner was “fighting for his freedom,” i.e., attempting to reverse his 22-year-old conviction); Matter of Greene v. Hynes, 2004 WL 1095029 at *3 (Sup. Ct. Kings County 2004) (“petitioner's right of access is neither abridged nor enlarged by his intention to use these documents in an effort to set aside his murder and robbery conviction”). Rather, as noted, one who seeks access to records under the Freedom of Information Law does so “as a member of the public,” and his standing is neither enhanced nor restricted because he is or may become a litigant. Matter of John P. v. Whalen, 54 N.Y.2d at 99 (internal citations omitted); accord Matter of Fappiano v. New York City Police Dept., 95 N.Y.2d at 748. Thus, petitioner stands as would any member of the public, entitled to disclosure of that which is not exempt pursuant to statute, but with no special entitlement to material which may not be disclosed pursuant to the law. His status and reason for wanting 32 exempt materials may be relevant in other settings, but they are irrelevant under FOIL. Moreover, that which petitioner sought was not confidential solely pursuant to the statutory and case law relevant to FOIL requests, but was presumptively non- disclosable in any setting other than a criminal proceeding because it would identify victims of sex crimes. See Civil Rights Law § 50-b. In any event, under numerous provisions of the law, the District Attorney met her burden of establishing that the requested material was exempt from disclosure. The Appellate Division properly determined that the victims’ unredacted statements to the police were exempt from disclosure under FOIL. Citing FOIL’s exemption from disclosure of records that would reveal confidential information (Public Officers Law § 87[2][e][iii]), the Appellate Division held that the victims’ statements to the police were properly withheld. This was consistent with that court’s application of a “cloak of confidentiality” to statements taken during the course of a police investigation, when the witnesses who gave those statements did not subsequently testify at trial (Matter of Moore v. Santucci, 151 A.D.2d 677, 679 [2d Dept. 1989]); see Friedman, 134 A.D.3d at 828 [cases cited]). Petitioner argues that this exemption was inapplicable absent an explicit promise of confidentiality to the victims and was applied overly broadly to 33 exempt from disclosure “every record relating to the criminal investigation and reinvestigation” (petitioner’s brief at 30). The exemption was not improperly applied and the Appellate Division never suggested that this exemption was the basis for its dismissal of petitioner’s request for the District Attorney’s “entire file.” Public Officer’s Law § 87(2)(e)(iii) exempts from disclosure not only statements that would identify a “confidential source,” but also statements that would “disclose confidential information relating to a criminal investigation.” Thus, while those who speak to the police as explicitly identified “confidential informants” or under an explicit promise of secrecy, are clearly protected, so too are those who impart “confidential information relating to a criminal investigation” – regardless of whether the source of that information is confidential – and nowhere does the statute suggest a requirement that confidentiality be explicitly promised. Indeed, while attacking the Second Department’s application of this exemption because the victims here were not “confidential informants” and were not explicitly promised confidentiality, petitioner himself acknowledges that all of the appellate departments “require a witness to either have been assured confidentiality, or for there to be some evidence that confidentiality was implied” (petitioner’s brief at 27) (emphasis added). See Matter of Exoneration Initiative v. New York City 34 Police Dept., 114 A.D.3d 436, 440 (1st Dept. 2014) (a promise of confidentiality may be “express or implied”) (emphasis added); Matter of Johnson, 257 A.D.2d 343, 348 (1st Dept. 1999) (it is unnecessary for an agency to demonstrate a specific promise of confidentiality in order to warrant application of the FOIL exemption “if the circumstances give rise to the clear inference that such a promise was assumed”); cf. Dept. of Justice v. Landano, 508 U.S. 165, 177 (1993) (“when certain circumstances characteristically support an inference of confidentiality, the Government . . . should be able to claim exemption.”). It is generally reasonable for one who speaks to the police in the course of a criminal investigation to believe that the information he provides is given – and received – in confidence, regardless of whether the subject of that confidential information is aware of the speaker’s identity. As the court stated in Friedman, “[t]he rule holding that such statements are inherently confidential is sound, as it encourages ‘private citizens to furnish controversial information’ to law enforcement officials.” Friedman, 134 A.D.3d at 829 (citations omitted). Were it otherwise – were those who might disclose confidential information to know that the information provided could be traced back to them – the chilling effect on law enforcement would be incalculable. See Matter of Exoneration Initiative v. New York City Police Dept., 132 A.D.3d 545, 546 (1st Dept. 2015) (release of “personal information” could have chilling effect on future witnesses’ cooperation with police in cases of serious crime); Pope v. United States, 35 599 F.2d 1383, 1386 (5th Cir. 1979) (where confidentiality was not expressly promised, circumstances were such that sources could reasonably infer confidentiality and would not have provided information absent their reasonable inference of confidentiality).10 As relevant to this case, the concern for anonymity and confidentiality is notable in investigations of sex crimes.11 Indeed, so widely understood is the sense of shame and humiliation suffered by sex crimes victims that Civil Rights Law § 50-b provides extraordinary privacy protections for them and punishment for any governmental violation of their privacy. The possibility that a victim may testify at trial does not take pre-trial statements out of the province of the statute. That confidentiality is not waived unless and until the victim actually does testify and thus make his or her statements public. The victims here spoke to the police with a 10 That sources of confidential information will not come forward absent a reasonable expectation of secrecy is, of course, recognized by members of the press, such as the amici curiae, who adamantly defend their constitutional and statutory rights to withhold confidential information, knowing full well the chilling effect on investigations that would result from the disclosure of such information and its sources. See, e.g., Matter of Holmes v. Winter, 22 N.Y.3d 300 (2013). Indeed, when, in conjunction with petitioner’s first motion to vacate his judgment of conviction, the County Court issued a subpoena requiring the makers of Capturing the Friedmans to produce original uncut film of interviews of two people seen in the movie, the immediate response was a motion to quash based on constitutional and statutory provisions protecting reporters. 11 According to the National Sexual Violence Resource Center, “only 12% of child sexual abuse is reported to the authorities.” http://www.nsvrc.org/sites/default/files/ publications_nsvrc_factsheet_media-packet_statistics-about-sexual-violence_0.pdf. 36 reasonable expectation of the confidentiality that was implied by the nature of their communications, and the FOIL exemption was properly applied. Nonetheless, petitioner argues that complainants cannot be “confidential informants” (petitioner’s brief at 33). Of course these children did not have CI numbers and were not “confidential informants,” as that term is commonly used in criminal investigations. But petitioner completely ignores the second phrase in Public Officers Law § 87(2)(e)(iii), which protects the “confidential information” given by these victims. These children spoke to the police in the intimacy of their homes. They revealed details of anal sodomy committed by their teacher and petitioner. No reasonable person would expect such statements to be made public, absent his or her decision to testify at a trial. Cf. Matter of Thomas v. New York City Dept. of Education, 103 A.D.3d 495, 497 (1st Dept. 2013) (“What constitutes an unwarranted invasion of personal privacy is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.”) (citing Matter of Beyah v. Goord, 309 A.D.2d 1049, 1050 [3d Dept. 2003]) (discussing the privacy exemption of Public Officers Law § 87[2][b]). And, certainly, no reasonable person would expect such statements to be published in the newspapers for the entire world to see, as the amici apparently advocate. There was a reason that the indictments in petitioner’s criminal matter did not identify the complainants by their given names, 37 but instead identified each with the surname “Doe.” That reason was the implied promise of confidentiality that any victim would expect when giving highly personal statements such as those in this case. Petitioner further asserts that these complainants are not entitled to confidentiality because “obviously” they made their statements “with the understanding that they would be used at trial” (petitioner’s brief at 34). That is not obvious. Not all complaints lead to prosecutions, and not all prosecutions lead to trials. But even if petitioner had chosen to proceed to trial, it is not “obvious” that the victims’ parents would have consented to subject their children to what testifying in open court would have entailed. Indeed, some children had expressed their fear of testifying at a trial, and some parents had indicated their opposition to their children testifying (RA17). But the fact is that petitioner pleaded guilty and waived his right to confront the complainants, and the District Attorney made it clear that petitioner’s waiver of the right to appeal and the prosecutor’s sorely mistaken belief that the plea would “bring[ ] the case to a conclusion,” was a significant consideration in the plea negotiations (RS12). The plea, with its attendant waiver of appeal, was negotiated specifically to “remove the spectre of this case” from the victims and their families and spare the victims the “terrible further trauma of undergoing a lengthy trial” (RS12, RA17). Cf. People v. Martinez, 26 N.Y.3d 196, 38 198 (2015) (following trial and conviction of rape, imposition of sentence greater than that offered in plea negotiations was appropriate where, inter alia, plea would have spared the victim from testifying at trial); People v. Miller, 65 N.Y.2d 502, 509 (1985) (in rape prosecution, plea and lenient sentence were negotiated “in order to protect the victim”). It is clear from a letter sent to the Supreme Court that the writer, who was a complainant, has always believed that this was accomplished; he has always believed that the matter was closed when petitioner pleaded guilty (A*2294- 95). All of the circumstances of this matter make clear that the complainants’ statements to the police were given with an expectation of confidentiality, and the plea was negotiated to protect that confidentiality. The statements were properly withheld by the District Attorney pursuant to FOIL’s confidential-information exemption. Petitioner further argues that the Appellate Division has interpreted FOIL’s confidentiality exemption “to protect from disclosure the [District Attorney’s] entire case file, regardless of its contents” (petitioner’s brief at 35). The court never said anything like that in this or any other decision. As discussed in Point I, the District Attorney argued in the Appellate Division that petitioner’s request for her “entire case file” was unexhausted and should not 39 have been entertained by the Supreme Court. The Appellate Division addressed the “initial matter” of exhaustion, and stated that it was apparent from the FOIL correspondence that “any attempt [by petitioner] to seek disclosure . . . of the grand jury minutes and unredacted witness statements[ ] would have been futile.” For this reason, the court stated, article 78 review of these requests was appropriate, regardless of whether they were exhausted (Friedman, 134 A.D.3d at 827-28, citing Matter of New York Times Co. v. City of New York Police Dept., 103 A.D.3d 405, 408-09 [1st Dept. 2013]), and the court proceeded to address those requests. The court did not address petitioner’s unexhausted request for the “entire file,” and the only reasonable reading of its decision is that it did not address that request because it was both unexhausted and not futile – unlike the two requests the court specifically identified and reviewed. While it is likely that some of the District Attorney’s records would have been withheld upon a FOIL request for the entire file, it is obvious that some of the material would have been disclosed. Indeed, the District Attorney’s public report referred to and appended numerous documents. Thus, the request for the “entire file” should have been part of petitioner’s FOIL application, in accord with the statutory procedural requirements. 40 Contrary to petitioner’s argument, the District Attorney did not – and does not – “assert . . . that ‘every piece of paper’ in [her] file” relating to petitioner is protected from disclosure, and the Appellate Division did not misapply FOIL’s confidentiality exemption to, as petitioner claims, “protect from disclosure the entire case file, regardless of its contents” (petitioner’s brief at 35). The Appellate Division’s order merely reflects the law that a request that was not initially raised in a FOIL application, but which would have been futile to raise in such an application, may be raised in an article 78 application (see Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 [1978] [the requirement that administrative remedies be exhausted “need not be followed . . . when resort to an administrative remedy would be futile”]; Matter of New York Times Co. v. City of New York Police Dept., 103 A.D.3d 405, 409 [2013] [“in the context of FOIL, a futility exception exists to ‘the judicially-created rule that administrative remedies must be exhausted’”] [quoting Bankers Trust Corp. v. New York City Dept. of Finance, 1 N.Y.3d 315, 322 (2003)]), but all non-futile requests must be exhausted. The court reviewed petitioner’s requests that would have been futile. It simply did not address petitioner’s unexhausted – and not futile – request for the District Attorney’s “entire case file.” He was not entitled to review of that unexhausted request. 41 Petitioner has not established good cause for disclosure of statements deemed confidential under Civil Rights Law § 50-b. Civil Rights Law § 50-b(2)(b) prohibits disclosure of the identity of any victim of a sex crime, absent application to a court and a demonstration of “good cause” for the disclosure. Having addressed those claims that were administratively exhausted, and having correctly determined that the witnesses’ statements were exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(iii) (the confidential source or information exemption), it was unnecessary for the Appellate Division to address petitioner’s claim that he was entitled to documents under the Civil Rights Law, and the court made that appropriate determination. Friedman, 134 A.D.3d at 831. Nonetheless, petitioner would now have this Court determine whether he has established “good cause,” based on his claims that his guilty plea was coerced, that he is not guilty, and that the materials he seeks may advance his attempts to establish his innocence or obtain other relief. Assuming arguendo that the Appellate Division was not correct in its application of the Public Officers Law, and should have addressed the “good cause” provision of Civil Rights Law § 50-b, the appropriate remedy would be to remand to that court to allow it to evaluate the parties’ arguments. Matter of Karlin v. McMahon, 96 N.Y.2d 842, 843 (2001). But should this Court choose to address the issue, it should reject petitioner’s argument. 42 A three-year investigation was conducted by a Review Team of experienced prosecutors. That team worked in conjunction with an Advisory Panel of independent experts who focused on “process issues,” i.e., the Panel members “guided the process and provided their experience and expertise regarding victims of crime, police procedure, and conviction integrity review policies and practices,” but did not function as an investigative body (A*0286). The Review team – the investigative body – concluded that petitioner’s guilty plea was not coerced and that he was not wrongfully convicted. The Advisory Panel, while noting that it had no obligation to express a view as to whether it agreed with the conclusions of the Review Team, chose to issue a statement reflecting its view that the report’s conclusions were, in fact, “reasonable and supported by the evidence it cites” (A*0286). While petitioner disagrees with that conclusion and believes the report is flawed, its conclusions are compelling and supported by overwhelming evidence. The District Attorney’s Review Team filed a 155-page report, examining each of petitioner’s allegations of innocence, coercion, and misconduct. The report did not shy away from acknowledging missteps in the police investigation and inconsistencies in some of the computer students’ statements. On the other hand, the investigation and report completely refuted petitioner’s claims – made for years and, again, in his article 78 petition – that at least one of the complainants refused to 43 assert any abuse until he was subjected to hypnosis (A*0383-85) and that the judge presiding over his prosecution demonstrated her pre-judgment of petitioner and coerced his plea (A*0387-91), and it significantly discredited petitioner’s claim that many victims had recanted their statements (A*0412-21). It concluded, and the Advisory Panel agreed, that none of the evidence, and none of petitioner’s claims of wrongdoing, raised any credible doubt concerning the propriety of his conviction. These findings, and petitioner’s claims regarding them, were discussed at length in the District Attorney’s response filed in the Supreme Court (A1957-62). But, in a rare moment of accord between petitioner and the District Attorney, petitioner agreed that “the validity of the Rice Report [was] not before the Court” (A2166). Nor is the validity of the report the issue before this Court, although petitioner devotes much of his brief to attacking it. Indeed, even if the report had not concluded that there was no valid basis for petitioner’s repeated claims concerning hypnosis of complainants, and coercion of witnesses, and judicial misconduct,12 and even if it did not overwhelmingly support its conclusion 12 Throughout his litigation, petitioner has been insistent that his conviction was the result, at least in part, of the bias of Judge Boklan (the judge who accepted petitioner’s negotiated plea and imposed sentence) (petitioner’s brief at 4, 8, 13), and he has attempted to support this claim with clips from Capturing the Friedmans, a movie that was apparently and improperly accepted as “evidence” by at least one court. See Friedman v. Rehal, 618 F.3d 142 (2d Cir. 2010). But it is not just the District Attorney who rejects petitioner’s claim of judicial bias. Currently pending before the County Court, Nassau County, is petitioner’s 44 concerning the propriety of petitioner’s conviction, petitioner’s FOIL application would still have been properly denied, and the article 78 application should still have been dismissed because the material he seeks was not the basis of his conviction. Petitioner was convicted on the basis of his guilty plea. His conviction does not rest on the credibility of any statements made by the victims; it rests solely on footnote continued from previous page actual-innocence motion. In an order addressing petitioner’s motion, the court relied on all the submissions of the parties, except the transcript of petitioner’s movie, stating that “[i]t is this Court’s belief that this motion should be decided on evidence that is not subject to the editing skills of successful and talented movie producers” (RA246). The court subsequently addressed petitioner’s allegation that his plea was the result of improper judicial coercion. The court noted procedural bars to review of this allegation (RA250), but then conducted a lengthy and detailed examination of the supposed “evidence” in support of the claim. It concluded that “the complete transcript” (RA251) (emphasis in original) of Judge Boklan’s interview with the movie makers (which was provided as a People’s exhibit), as well as statements by Scott Banks (Judge Boklan’s law secretary) and Peter Panaro (petitioner’s then-counsel), led to “the exact opposite” of petitioner’s allegation of coercion (RA251). After examining the unedited version of Judge Boklan’s interview, the court found nothing that could support a claim of judicial coercion (RA251). Relevant to the same allegation, the court reviewed at length an affirmation from Peter Panaro and a transcript of a recorded meeting between Panaro and petitioner two days prior to the entry of the guilty plea. It noted extensive conversation concerning possible trial defenses and evidence that could be presented at trial, as well as discussion of the proposed plea bargain and its consequences, and the lie detector test that petitioner had taken and the fact that the test indicated deception. Panaro detailed that petitioner discussed pleading guilty with numerous therapists and his family. Nowhere in any of this did the court find any evidence of judicial coercion, and petitioner’s motion to vacate his judgment of conviction, to the extent that it was based on a claim of judicial coercion of his guilty plea, was denied (RA252-53). It is further worth noting that, beyond the portions of the colloquy that were specifically cited by County Court in its 440 decision, petitioner also repeatedly assured Panaro that he was pleading guilty “because he [was] in fact guilty, and for no other reason” (A*0347). 45 the sufficiency of his plea. See People v. DiRaffaele, 55 N.Y.2d 234, 240 (1982) (the conviction of one who pleads guilty “rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial”); see also People v. Thomas, 53 N.Y.2d 338, 344 (1981) (“[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction”) (citations omitted). Of course, had petitioner chosen to go to trial, and had the complainants’ parents permitted them to publicly testify against him, and had he been convicted, the subsequent undermining of the victims’ testimony could be relevant to a claim of innocence.13 But petitioner chose not to go to trial. There was no jury that credited any complainant’s testimony and thereafter convicted petitioner on the basis of any testimony, and petitioner cannot be exonerated by his attempts to impeach testimony-that-might-have-been. He can be exonerated only by proof of his “factual innocence.” People v. Hamilton, 115 A.D.3d 12, 23 (2d Dept. 2014). He claims to already have such proof. Petitioner says that the evidence he has already obtained “has eviscerated the case against him” (petitioner’s brief at 10). He also refers to his actual-innocence motion, pending in the County Court, and says that he has made a sufficient showing 13 Of course, had petitioner gone to trial, he would have been supplied with the statements and grand jury testimony of any witness who testified against him (see People v. Rosario, 9 N.Y.2d 286 [1961]), as well as any material to which he was entitled pursuant to Brady. 46 there to warrant a hearing (petitioner’s brief at 5). Indeed, in that document petitioner states that his allegations of improper questioning have already “been confirmed by subsequent investigation” (RA82), and that the complainants’ credibility has already been undermined. In support of that statement, he relies on, inter alia, statements from complainants, statements made by non-complainant students, statements of students’ parents, information from the District Attorney’s report, interviews given by investigating detectives, review of a subsequent, unrelated investigation conducted by some of the same detectives who investigated petitioner’s case, newspaper articles, consultation with experts in the field of “child sex rings,” and an alleged recantation by Ross G., who was indicted with petitioner (RA82-102). In that same motion, petitioner states that he has spoken to ten of the complainants. Four, according to petitioner, “have completely repudiated the statements ascribed to them as children”; a fifth recalls no sexual abuse; a sixth is unreliable; and four others “refused to reconfirm their childhood accounts” (RA137). In addition, petitioner claims to have spoken to twelve other students who were not complainants, but who were in classes where abuse allegedly occurred, all of whom deny ever witnessing any abuse (RA137), and to have statements of non- complainant students who were in classes with the complainants, and who “state 47 unequivocally” nothing ever happened to them or to the complainants in those classes (petitioner’s brief at 57). Petitioner has asserted that “there is nothing left of the prosecution’s case” (RA138). Taking petitioner at his word, and following his assertion to its reasonable conclusion, there is nothing left of his claim of “good cause.” Petitioner does not establish necessity for the material he seeks; to the contrary, he refutes it. Petitioner has, he claims, exculpatory evidence from complainants and witnesses and multiple other sources. He intends to call the complainants, as well as other students, to testify at the hearing to be held on his claim of actual innocence (petitioner’s brief at 63), and he concludes from this that there are no privacy interests left to protect (id.), but what he has actually established is that he has no good cause for disclosure. He claims to have what he needs. And while the District Attorney concedes the validity of none of petitioner’s assertions concerning his “overwhelming evidence demonstrat[ing] that [he] is actually innocent” (RA184), those are his assertions. He should not be heard to argue in this Court that his claim of innocence requires disclosure of confidential material, while simultaneously 48 arguing both here14 and in another court that, based on the material he has amassed, “there is nothing left of the prosecution’s case” (RA138). There is no good cause for the disclosure of the most highly personal statements of child sex-crimes victims when petitioner has himself claimed that he can establish his innocence without them. Concluding his point, petitioner argues that this Court’s language in Matter of Fappiano, 95 N.Y.2d at 748, is inapplicable to this proceeding. In Fappiano, the Court stated, “Nor does the fact that petitioners already know the identity of their victims provide a basis for disclosure.” According to petitioner, this language does not apply to him because Fappiano’s holding was “expressly limited” to applications brought pursuant to Civil Rights Law § 50-b(2)(a), and it is true that the Court stated that its discussion was limited to the applicability of that subsection (95 N.Y.2d at 14 Among petitioner’s assertions in this Court is the claim that “[o]ne complaining witness, ‘Kenneth Doe,’ whose testimony was responsible for 15 charges to which Friedman plead[ed] guilty,” denies that he ever saw petitioner engage in sexual conduct (petitioner’s brief at 11-12). Petitioner pleaded guilty to twenty-five counts. Kenneth Doe was not “responsible for 15” of those counts. Kenneth Doe was the complainant in only four counts charging petitioner (A0486 [counts 4 and5], A0488 [counts 15 and 16]), and of those four counts, petitioner pleaded guilty to two (counts 4 and 15). In any event, Kenneth Doe’s recantation was acknowledged in the District Attorney’s report, and its reliability was assessed to the extent possible, given the circumstances under which it was made and his refusal to even confirm his identity for the Review Team (A*418-20). For the purposes of the litigation before this Court, it is notable that, regardless of his recantation, this complainant is adamant that his privacy be protected, and he particularly “rel[ies] on the provisions of Civil Rights Law § 50-b(2)” (A*0268). 49 748 n.). But the Court’s pronouncement concerning prior knowledge of the victim’s identity was not limited to the applicability of any particular subsection of 50-b. Rather, the Court’s very next sentence stated that “[t]he original goal of Civil Rights Law § 50-b” – not any particular subsection of § 50-b – “is to protect the privacy of sex crime victims [and] cannot be negated by a litigant’s assertion that he knows the identity of the victim.” Fappiano, 95 N.Y2d at 748; see Matter of DeOliveira v. Wagner, 274 A.D.2d 904, 905 (3d Dept. 2000) (notwithstanding petitioner’s claim that he knew identities of people interviewed by police, records of police communications with those people were exempt from disclosure under FOIL’s privacy exemption); Matter of Johnson v. New York City Police Dept., 257 A.D.2d 343, 348 (1st Dept. 1999) (“Merely because petitioner knew that someone was a witness does not mean that he knew what such witness told the police, which could well have been information imparted in confidence.”). Moreover, this Court stated in Matter of Karlin v. McMahon, 96 N.Y.2d 842, 843 (2001), that when records are confidential pursuant to Public Officers Law § 87(2) and Civil Rights Law § 50-b(1), there is no obligation to “remove all details which ‘tend to identify the victim,’” implicitly acknowledging that the children’s names are not the sole “identifying information” in their statements. Identities can be deduced by the dates and times of the classes the students attended, the length of their enrollments, references to other students, and any number of other references. 50 In any event, petitioner asserts that his reading of Fappiano is no bar to the disclosure of material otherwise protected by Civil Rights Law § 50-b “and the protective order provision could be imposed” (petitioner’s brief at 65). That protective order, according to petitioner, would “restrict access of documents to those who have shown good cause for their release” (petitioner’s brief at 64) and would presumably preclude petitioner from making the victims’ statements (unredacted per the Supreme Court’s order) available to the world. According to petitioner (petitioner’s brief at 6) and according to the dissenting judge at the Appellate Division (Friedman, 134 A.D.3d at 828), there is authority for such an order in Civil Rights Law § 50-b(3). There is not. Civil Rights Law § 50-b(3) provides that “[t]he court having jurisdiction over the alleged offense may order any restrictions upon disclosure authorized in subdivision two of the section, as it deems necessary and proper to preserve the confidentiality of the identity of the victim.” The “disclosures authorized in subdivision two” are solely agency disclosures – not requestor disclosures. Indeed the term “disclosure” is used throughout the section to refer only to disclosure by public officers and employees. Thus, a court could restrict disclosure “authorized in subdivision two” by, for example, ordering the disclosing public officer to redact 51 information necessary to preserve a victim’s identity. This section suggests no statutory authority to impose restrictions upon the requestor – the person to whom disclosure is made. In any event, Supreme Court did not order nondisclosure by petitioner, although petitioner had argued that that court had the statutory power to order that “everybody” who receives the victims’ statements not reveal those names (A2258). “Everybody” would presumably include, at a minimum, petitioner and his counsel. And any other attorney(s) assisting petitioner in his litigation. And the expert(s) to whom petitioner has said he will submit the statements for review. And his investigators. And “everybody’s” assistants and office staff. “Everybody” has the potential to be a lot of people. And court order or not, that provides very little confidentiality for the victims. Of course the names of the victims are not the sole issue here. Their privacy will be destroyed by the release of their statements. As petitioner repeatedly states, he already has the victims’ names, having been provided with that information in the course of his criminal prosecution. And while petitioner repeatedly states that he has never disclosed the identities of his victims (petitioner’s brief at 64; A2257), he also repeatedly states that nothing precludes him from doing so (petitioner’s brief at 52 64; A2257). He should be precluded from disclosing their statements – not by a non-disclosure order that finds no authorization in Civil Rights Law § 50-b – but by affirmance of the dismissal of his article 78 proceeding. Having already determined that petitioner’s request for the witnesses’ statements was foreclosed by FOIL’s confidentiality exemption, the Appellate Division majority found no need to address petitioner’s argument concerning the disclosure of material deemed private pursuant to Civil Rights Law § 50-b. Friedman, 134 A.D.3d at 831. The Supreme Court, which entertained lengthy argument on section 50-b, rendered an indefensible decision, based on that court’s fundamental misapprehension of the nature of the proceeding before it and the applicable law. The Supreme Court ordered disclosure of all of the witnesses’ statements, unredacted but for the names of the three complainants who had contacted the court and requested that their privacy be protected. In reaching that decision, the court considered petitioner’s status as a registered sex offender and concluded that the proceeding before it was, therefore, a continuation of the criminal proceeding (A2254, A2268, A2273) – which, of course, it was not. The court stated its concern that there had been a Brady violation in the criminal proceeding (A2272, A2277, 53 A2280) – discounting the fact that any Brady claim had been found meritless in both the state and federal courts, and observing that “not every circuit” agreed with the Second Circuit Court of Appeals’ interpretation of the law concerning petitioner’s Brady claim (A2279). It considered relevant that petitioner had been provided with the names of the complainants during the course of his criminal prosecution (A2271) and rejected the District Attorney’s reliance on this Court’s decision in Matter of Fappiano, stating that “it is not something that the . . . Appellate Division has adopted wholesale” (A2272). On the other hand, the court gave no apparent serious consideration to the letters received by it in response to the notification requirement of Civil Rights Law § 50-b(2)(b). The court received two letters from petitioner’s victims. Each of those victims reaffirmed that they had been abused by petitioner. One recounted specific conduct and threats, and stated his disgust that this matter had been opened again, inflicting new pain on the victims. It was clear that the victim had lived with the impression that his cooperation with the police and his testimony before the grand jury would be kept private (A*2294-95). Acknowledging the letters sent to it, the court stated: “[T]his Court wrote a letter that is going to become an exhibit, . . . in which it will fill in the blanks, and essentially provides the following: Do you wish to have any information made available? I suggest in this letter that the recipient 54 even speak with the therapist or anyone, get any help that he or she may desire” (A2269-70). This was the extent of the consideration the court gave to the intensity of the letters it had received and the anguish they reflected, or the privacy they begged for. Indeed, even when counsel for a third complainant appeared in court and expressed his client’s desire to keep his statements confidential (A2254-55), the court mischaracterized that application as applying only to the complainant’s name (A2262). Counsel reiterated that that was not the case (A2262-63). Neither did the court consider the specifics of the information that might be included in an order of nondisclosure – which was never issued. Rather, Supreme Court turned the notification requirement of § 50-b(2) on its head, transforming it from a shield into a burden, requiring the victims’ participation in petitioner’s litigation and imposing a drastic penalty for failure to do so. That penalty was, in the Supreme Court’s application of the statute, disclosure of wholly unredacted statements and grand jury testimony of those victims who did not respond and object. Consistent with this reading of the notification requirement, petitioner argues that the victims’ failure to respond to the notification, “strongly suggest[s] that they simply did not care” (petitioner’s brief at 22). 55 Perhaps there is another explanation. Perhaps those who did not respond were simply horrified at the prospect of reopening and renewing their victimization decades after they had believed this episode in their lives was closed. Perhaps they would avoid any action that could again embroil them in this matter. Perhaps they believed that their privacy and confidentiality would be protected by the courts and the District Attorney, and they would not have to respond and thereby put their names on more paper that someone someday might want to make public. There are any number of reasons why most of the victims did not respond to the notifications sent by petitioner’s counsel. But “not car[ing]” is surely not one of them. If the victims did not care, they could have simply consented to the disclosure of the information in issue, as provided for in Civil Rights Law § 50-b(2)(c). Not one has. Petitioner has not supplied the District Attorney with any such consent by any victim, and no victim has himself provided the District Attorney with consent. The victims most assuredly care. But even if disclosure could be countenanced in some measure or form, it cannot be countenanced without any regard whatsoever to the content of the records. The Supreme Court ordered indiscriminate release of records, with no provision for redaction and no consideration or concern for the disclosure of personal information of no value to petitioner, not to mention highly personal, potentially shaming 56 disclosures regarding the sexual assaults, made by victims who were entitled to expect privacy. Supreme Court misconstrued the nature of the proceeding and ignored or rejected established law. It took upon itself the role of a criminal court entertaining and reviewing a criminal proceeding. Its order was contrary to law and devoid of any exercise of discretion that might in any way be characterized as reasonable, and was rightly reversed. 57 POINT III Petitioner Failed To Establish A Compelling And Particularized Need For Grand Jury Minutes; The Supreme Court Erred In Ordering Wholesale Disclosure Of Minutes It Never Saw. “As a threshold matter, a party seeking disclosure of grand jury minutes must establish a compelling and particularized need for them. Only then must the court balance various factors to assess, in its discretion, whether disclosure is appropriate under the circumstances presented.” People v. Robinson, 98 N.Y.2d 755, 756 (2002) (citing People v. Fetcho, 91 N.Y.2d 765, 769 [1998], Matter of Lungen v. Kane, 88 N.Y.2d 861, 862-63 [1996], and Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444 [1983]). The decision on a motion to disclose grand jury minutes is reviewed for abuse of discretion. See Robinson, 98 N.Y.2d at 757. To meet the demanding standard of demonstrating “a compelling and particularized need,” the party requesting the minutes must demonstrate that the information he seeks cannot be obtained from other sources (see Matter of Aiani v. Donovan, 98 A.D.3d 972, 974 [2d Dept. 2012]) and that the grand jury minutes are “essential” (Matter of District Attorney of Suffolk County, 58 N.Y.2d at 445). As determined by the Appellate Division here, petitioner has not established a compelling and particularized need for the grand jury minutes (Friedman, 134 58 A.D.3d at 830-31), and he has himself asserted and demonstrated that he can obtain the information he seeks without access to those records. Petitioner has been insistent that he is not guilty of the crimes to which he pleaded guilty, that the information he is requesting might assist him in establishing his claim, and that he has, therefore, satisfied his burden and is entitled to materials that would otherwise remain secret. In his initial request for grand jury minutes, petitioner spoke of the “potentially exonerating evidence” he might find, which “may” help him demonstrate innocence (A0051). That claim – speculative and nonspecific – could be made by anyone seeking to vacate a conviction and was insufficient to warrant the disclosure petitioner sought. See Ruggiero v. Fahey, 103 A.D.2d 65, 70-71 (2d Dept. 1984) (conclusory statements that grand jury testimony is needed for impeachment, refreshing recollection, or preparation for trial are insufficient as these claims can be made in any case); see also Matter of District Attorney of Suffolk County, 58 N.Y.2d at 446; People v. Marante, 237 A.D.2d 130 (1st Dept. 1997); People v. Bonelli, 36 Misc.3d 625, 627 (Sup. Ct. Richmond County 2012). It failed to articulate any specific facts establishing a “compelling and particularized need” for the grand jury testimony (Robinson, 98 N.Y.2d 755). Indeed, petitioner’s very language – referring to “potential” evidence that “may” further his cause – suggested nothing more than a fishing expedition. See People v. 59 Robinson, 87 A.D.2d 877, 878 (2d Dept. 1982) (subpoena may not be used “as a fishing expedition for purposes of discovery or to ascertain the existence of evidence, but rather to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding”). Then, in his reply memorandum in the Supreme Court, petitioner attempted to establish a compelling and particularized need for the grand jury records, stating that he could use those records in the same way he could use the victims’ statements to law enforcement officials, i.e., he could have the victims’ testimony forensically analyzed in the hope that his expert consultant would find evidence of unreliability; he could use the grand jury minutes to attempt to reconstruct class rosters and find and interview witnesses; and he could use the minutes to attempt to identify other suspects who were not prosecuted, and thereby exculpate himself. Petitioner seeks to invade the secrecy of the grand jury, as he seeks to defeat the privacy provisions of Civil Rights Law § 50-b, so that he may rifle through the entirety of the grand jury minutes, searching for information that “may” be there, that “may” supplement information he claims to already have, and that “may” assist him in his litigation. This is not a particularized and compelling need. Indeed, petitioner himself demonstrates that there is no compelling need here. 60 As petitioner’s own investigation demonstrates, he does not need these records. From the inception of the litigation disputing the legality of petitioner’s plea, he has had the cooperation of the maker of Capturing the Friedmans, and petitioner has consistently relied on the statements made in the film in his attempts to establish that he is innocent and that his plea was invalid. Petitioner has provided the Court with two discs (A0181, A2206) produced by the filmmaker. Those discs include segments of Capturing the Friedmans, supplemented with selected portions of interviews conducted with men who were children in Arnold Friedman’s computer school. In addition, there are parts of an interview with the law secretary who reviewed the grand jury minutes during the pendency of petitioner’s criminal case and who was critical of the strength (but not the sufficiency) of the evidence before that body. Petitioner’s counsel has spoken to Kenneth Doe, a complainant, and procured from him a letter denying that he was subjected to, or witnessed, sexual abuse in Arnold Friedman’s classes (A0267-69). In addition, petitioner knows the names of all of the complaining witnesses, as well as their addresses (A1899). From the film, as well as the District Attorney’s report, he knows the names of the officers who investigated the case. He knows who prosecuted the case. The evidence petitioner claims to have appears to be massive, and belies his assertion of a compelling need to invade the secrecy of the grand jury. 61 But perhaps, as with his claim of good cause for release of the witnesses’ statements, most contradictory to petitioner’s claim of a compelling and particularized need for grand jury minutes are his own words, insisting on the strength of the evidence he already has and its sufficiency to “eviscerate” any proof against him (petitioner’s brief at 10) and to “completely and conclusively refute[ ]” every complaining witness’s grand jury testimony (RA152). Petitioner specifies and purports to document improprieties in the original criminal investigation; he names and quotes ex-students and their parents, whose statements petitioner claims establish his innocence; and he addresses – and claims to refute – the allegations of each of the complainants. According to petitioner’s innocence motion, “the defense” has spoken to ten of the fourteen original complainants (as well as twelve students who were not complainants), and four complainants “have completely repudiated the statements ascribed to them as children” (RA137). According to petitioner, “the grand jury testimony of every complaining witness is thoroughly undermined by clear and credible evidence, often in multiple forms and from multiple sources” (RA152). According to petitioner’s motion, his papers, alone, establish that “there is nothing left of the prosecution’s case” (RA138). Petitioner cannot say all this and simultaneously establish that the grand jury minutes are “essential” (Matter of District Attorney of Suffolk County, 58 N.Y.2d at 62 445) to him. He cannot sustain his burden of establishing a compelling and particularized need for the grand jury minutes when he simultaneously claims that he already has clear and convincing evidence, in multiple forms and from multiple sources, that wholly undermines the grand jury testimony of every complainant and destroys any possibility that he is guilty. He has not established that he cannot proceed without resort to the grand jury minutes. Rather, he has established that he is more than able and prepared to proceed without them. See Matter of District Attorney of Suffolk County, 58 N.Y.2d at 446 (“there was a shortfall too in identifying what made it impossible for the [appellant] to establish his case without resort to the minutes”). But even if petitioner could establish a compelling and particularized need for grand jury material, that, alone, would not entitle him to the records he seeks. Upon a showing of compelling and particularized need, a court must then balance that against the public’s strong interest in maintaining grand jury secrecy. See Fetcho, 91 N.Y.2d at 769. Supreme Court failed to properly balance these interests. Indeed, Supreme Court never requested that the District Attorney provide it with the grand jury minutes, the District Attorney did not provide those minute, and, as noted by the Appellate Division, there is no indication that the Supreme Court ever reviewed 63 the minutes before ordering their disclosure.15 Friedman, 134 A.D.3d at 831. For that reason, too, its order was correctly reversed by the Appellate Division. There are multiple reasons for maintaining the secrecy of grand jury proceedings, some of which are not pertinent here, as petitioner points out (petitioner’s brief at 39). Obviously, there is no need here to prevent flight by a defendant who is about to be indicted or to prevent interference with the grand jurors or prospective witnesses at a trial resulting from an indictment the grand jury may return. See People v. DiNapoli, 27 N.Y.2d 229, 235 (1970). And there is no need “to protect an innocent accused from unfounded accusations if in fact no indictment is returned.” Id. But there is a significant and compelling reason to protect the “venerable and important policy” of grand jury secrecy in this matter, and that is to “encourag[e] free disclosure of information by witnesses.” Fetcho, 91 N.Y.2d at 769; see DiNapoli, 27 N.Y.2d at 235 (confidentiality of grand jury testimony is necessary as an “assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely”) (emphasis added); Ruggiero v. 15 Nevertheless, in his argument concerning the grand jury minutes, petitioner states that Supreme Court, “in reviewing the minutes,” found inconsistencies in the witnesses’ statements (petitioner’s brief at 38). The court was referring not to statements before the grand jury, but to statements apparently given to and written by detectives (A2283-84). 64 Fahey, 103 A.D.2d at 71 (court must consider effect disclosure will have on future grand juries). Petitioner below argued that that interest is outweighed here because there is “overwhelming evidence” that the complainants’ testimony was “coerced” (A0052). He now states that “more witnesses have disavowed their statements” and claim to have been “coerced into being untruthful before the grand jury” (petitioner’s brief at 38 n.11). Again, the District Attorney concedes none of this. The grand jury minutes were reviewed by the court presiding over petitioner’s criminal case. The review was thorough – twenty-three counts were dismissed – and even the reviewing judge’s law secretary, who has now offered support to petitioner, has not asserted that any witnesses were coerced (A2230-31). But, regardless of whether the District Attorney concedes the validity of petitioner’s proof, he claims to already have that which he needs. On the other side of the equation, publication of grand jury testimony will have a devastating effect on the people who offered that testimony decades ago and whose parents permitted them to give that testimony in accord with laws that promised those then-children that their privacy would be protected. It does not require significant argument to establish that victims of sex crimes, testifying in the 65 grand jury concerning highly personal and possibly humiliating events, do not expect that testimony to be made public if the case does not go to trial. Indeed, it is for that very reason -- sparing sex-crime victims the embarrassment of testifying in public -- that a significant percentage of sex-crime cases, particularly those involving children, are resolved by guilty pleas, even when that resolution means reduced sentences for the abusers. Indeed, the prosecutor here repeatedly noted that minimizing the victims’ ordeal and sparing them the trauma of public testimony were the primary reasons that the People entered into plea negotiations in this case (RA15-18). In his dissent in People v. DiNapoli, Judge Scileppi said that “[t]he grand jury system is only as strong and effective as the evidence which is made available to the grand jury by witnesses, and their co-operation should not be inhibited by erosion of the rule which traditionally asserts that their testimony will remain confidential.” DiNapoli, 27 N.Y.2d at 239 (Scileppi, dissenting).16 One can imagine no greater inhibition to witnesses’ cooperation in sex-crimes investigations than the fear that their grand jury testimony will be disclosed even if there is no trial. Notably, in 16 Judge Scileppi agreed with the majority’s premise that the secrecy of grand jury minutes is not “an absolute” and that “the question of secrecy versus disclosure is often a balancing proposition.” His dissent was based on his disagreement with the majority’s balancing equation in that particular case. DiNapoli, 27 N.Y.2d at 239-40. 66 petitioner’s case, police were precluded from speaking to some children because their parents deemed such interviews not to be “in their [children’s] best interests” (RA14). If the grand jury testimony in this matter is released, those parents’ concerns will be shown to have been right. They will be shown to have been right not to rely on a statutory promise of secrecy. Petitioner suggests that this has all become irrelevant because these children were complainants and, thus, he concludes, “could not have been relying on a promise of secrecy” because their grand jury testimony would have been disclosed when they testified at trial (petitioner’s brief at 42). But they did not testify at trial. And there is no reason to believe that all of the children would have, in fact, testified. A parents’ decision to allow a child to testify in a closed proceeding, whose secrecy is protected by statute, is not the same as a decision to put that child in an open courtroom and require him to publicly testify about – and make a public record of -- humiliating and possibly stigmatizing victimization. As already discussed, some of the parents in this case indicated to the prosecutor their opposition to their children participating in a trial (RA17). Petitioner further contends that, because he has the complainants’ names, an assertion of grand jury secrecy is “unavailing” (petitioner’s brief at 42). But 67 knowing a name is not the same as knowing the content of testimony, and the fact that petitioner knows the complainants’ names does not satisfy his burden. Matter of Fappiano v. New York City Police Dept., 95 N.Y.2d 738 at 748; see Matter of District Attorney of Suffolk County, 58 N.Y.2d at 442, 443 (where portions of grand jury proceedings had already been revealed, Court stated that, “while we may not be able to restore such secrecy as has been lost, we can curb any further disclosure of unpublished parts”). Indeed, were petitioner’s suggestion correct, every criminal defendant who knew the name of the complainant in his case could defeat the statutory prohibition against the disclosure of grand jury proceedings. Petitioner claims to have credible recantations. He claims to have a body of proof establishing improprieties at all stages of the original investigation and the reinvestigation. He has the names of, and has demonstrated access to, the complainants. He does not need, and cannot justify, access to grand jury minutes that are presumed, and are statutorily decreed, to be confidential. That confidentiality is of overwhelming importance to the people who believed that they were warranted in relying on a statutory promise of secrecy when they testified, and to the people who may rely on that secrecy in the future. 68 * * * * The issue before this Court is whether petitioner is entitled to material he sought in his FOIL request and ensuing article 78 petition. The issue is not whether petitioner is actually innocent; that issue is pending before, and will be decided by, the County Court. Nor is the issue “Jesse Friedman Today,” as outlined in petitioner’s two-page statement describing his hardships in prison, his life as a level three sex offender, and the obstacles he expects to face in the future because of his conviction (petitioner’s brief at 18-20). Everything petitioner says could be said by any person convicted of a sex offense and adjudicated a level three offender. The hardships attendant upon a criminal conviction do not establish an entitlement to otherwise exempt and confidential material. The issue here is not whether life has been difficult for petitioner, following his plea of guilty. It is not whether, twenty-eight years ago, some police detectives questioned some of the children in a manner that is now disapproved for many reasons. It is not whether the District Attorney’s reinvestigation was flawed. The issue is whether petitioner has satisfied his burden, such that he is entitled to grand 69 jury testimony, statements of sex-crimes victims, and the prosecutor’s “entire file” concerning him. He has not. Petitioner never requested the District Attorney’s “entire file” in any FOIL request, and so that sweeping request was properly denied and dismissed by the Appellate Division. He has not surmounted the “confidential information” exemption to FOIL disclosure, and so his request for the statements made by sex- crimes victims was properly denied and dismissed by that court. He has not established “good cause” for the disclosure of the victims’ statements, or a “compelling need” for the violation of grand jury secrecy, and for those reasons, too, his petition was rightly denied and dismissed. Petitioner seeks a fishing expedition for evidence that he asserts might have impeached witnesses had they testified at the trial he chose to forego. At the same time, he claims to already have that evidence. He claims to have evidence of “more than twenty-five eye-witnesses to the classes, eye-witness testimony on the unreliable and unethical manner in which the accusatory testimony was gathered, expert testimony on the nature of child testimony and its unreliability in such conditions, evidence on the literal impossibility of the charges alleged, and admissions on the absence of any corroborating evidence of the crimes alleged” 70 (RA185). Without access to the confidential material he seeks, petitioner claims that “[a]fter an examination of the complaining witnesses’ accounts, and the evidence in support and against them, it becomes clear not merely that reasonable doubt exists as to all of them, but all are implausible, impossible, or overwhelmingly contradicted by sworn testimony” (RA186). He says, in other words, that he has what he needs. He wants more. But wanting more is not compelling need or good cause for release of confidential information when petitioner has asserted that he already has more than enough. 71 CONCLUSION The Appellate Division’s Order Should Be Affirmed, Or, In The Alternative, This Matter Should Be Remanded To The Appellate Division For Determination Of Issues That It Did Not Reach. Dated: Mineola, New York August 17, 2016 Respectfully submitted, MADELINE SINGAS Attorney for Respondent-Respondent District Attorney, Nassau County 262 Old Country Road Mineola, New York 11501 (516) 571-3271 By: Judith R. Sternberg Assistant District Attorney Tammy J. Smiley Daniel Bresnahan W. Thomas Hughes Judith R. Sternberg Assistant District Attorneys of counsel