This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 56 

In the Matter of Jesse Friedman,

 Appellant,

 v.

Kathleen M. Rice, &c.,

 Respondent.

Ronald L. Kuby, for appellant.

Judith R. Sternberg, for respondent.

Reporters Committee for Freedom of the Press, et al.; 

National Association of Criminal Defense Lawyers et al.; District

Attorneys Association of the State of New York, amici curiae.

RIVERA, J.:

On this appeal we clarify the proper interpretation of

section 87 (2) (e) (iii) of our State's Freedom of Information

Law (Public Officers Law art 6 [FOIL]), under which a government

agency may seek to exempt from public inspection those records,

or a portion thereof, "compiled for law enforcement purposes and

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which, if disclosed, would . . . identify a confidential source

or disclose confidential information relating to a criminal

investigation" (Public Officers Law § 87 [2] [e] [iii]). We hold

that a government agency may rely on this exemption only if the

agency establishes (1) that an express promise of confidentiality

was made to the source, or (2) that the circumstances of the

particular case are such that the confidentiality of the source

or information can be reasonably inferred.

Here, the Second Department applied the wrong standard

when it held that the District Attorney of Nassau County properly

denied petitioner Jesse Friedman's FOIL request for records

relating to his conviction. The court relied on its precedent

that identifying information and statements gathered in the

course of a police investigation from witnesses who do not

testify at trial are presumptively confidential and, as such, are

exempt from disclosure under FOIL. No other Appellate Division

Department has adopted this interpretation of section 87 (2) (e)

(iii). Rather, the other Departments have properly required some

express or implied assurance of confidentiality to justify

withholding information, including the names or identities of

sources. The federal courts have required a similar showing

under the federal Freedom of Information Act (FOIA).

We conclude that the Second Department misinterpreted

section 87 (2) (e) (iii), and respondent's denial of petitioner's

FOIL request must be analyzed under the proper standard as set

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forth in this opinion. Therefore, we now reverse the Appellate

Division order and remit the matter to Supreme Court.

I.

This appeal is the latest in petitioner's efforts to

overturn his decades-old child sex crime convictions. In this

litigation, petitioner seeks information in the control of the

Nassau County District Attorney's Office, including the victim

statements and other information gathered during police

interviews of child witnesses. Petitioner argues that this

material is necessary to establish his claim of actual innocence. 

Before turning to the legal issues, we briefly summarize the

events that led to petitioner's conviction and the procedural

history of the matter before us.

A.

In 1987, then 18-year-old petitioner and his father

were arrested on multiple counts of sexual abuse of several

children between the ages of 8 and 12. According to the charges

contained in the three indictments filed against petitioner, the

abuse occurred over five years while the children attended an

after-school computer class taught by petitioner's father at

their family home. There was no forensic evidence of physical

abuse and the prosecution relied heavily on the children's

allegations made after questioning by the police, who employed

tactics and interview techniques that the District Attorney

concedes were "not ideal" and are no longer in use.

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Petitioner's father pleaded guilty to numerous sex

crimes in 1988 and died in prison in 1995. A few months after

his father's plea, petitioner also pleaded guilty to various sex

crimes, and was sentenced to multiple concurrent terms with a

maximum range of 6 to 18 years of incarceration. Petitioner did

not appeal, and, after serving 13 years of his sentence, was

paroled in December 2001.

B.

Approximately one year after petitioner was paroled,

the film "Capturing the Friedmans" was released. The movie

suggested that the police had elicited witness statements using

investigatory techniques that were unreliable or known to produce

false testimony -- including, in the case of one witness,

hypnosis -- and that petitioner was wrongfully convicted and

actually innocent. The filmmaker had interviewed many of those

involved in the original investigation, including detectives,

attorneys, family members, and victims.

Based on new information petitioner learned from the

film, he commenced the first of several state and federal court

proceedings. In 2004, petitioner moved unsuccessfully in state

court to vacate his conviction. The Appellate Division denied

him leave to appeal, and a Judge of this Court dismissed his

application for leave to appeal (6 NY3d 894 [2006]). Petitioner

subsequently petitioned for a writ of habeas corpus in federal

court, claiming, among other things, that he would not have

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pleaded guilty if he had known the details of the flawed

investigatory procedures used to build the case against him. 

Petitioner asserted that he only learned about these methods from

the filmmaker, who provided access to his materials including

unredacted tapes and complete transcripts of witness interviews.

The federal district court dismissed the habeas

petition as untimely, and the Second Circuit affirmed, also

concluding that the proceeding was time-barred (see Friedman v

Rehal, 618 F3d 142, 152 [2d Cir 2010]). The court's opinion,

however, included an extensive discussion highlighting the

judges' concerns with the process leading to petitioner's

conviction. The court noted that "[t]he magnitude of the

allegations against petitioner must be viewed in the context of

the late 1980s and early-1990s, a period in which allegations of

outrageously bizarre and often ritualistic child abuse spread

like wildfire across the country" (618 F3d at 155). This "[v]ast

moral panic fueled a series of highly-questionable child sex

abuse prosecutions," based largely "on memories that alleged

victims 'recovered' through suggestive memory recovery tactics"

and investigatory techniques that, "[t]he prevailing view" now

holds, "are [in the vast majority of cases] false" (id. at 155-

156). The court observed that between 1984 and 1995 "seventy-two

individuals were convicted in nearly a dozen major child sex

abuse and satanic ritual prosecutions," but "almost all th[ose]

convictions have since been reversed" (id. at 156). The instant

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case was "merely one example" of that "significant national

trend," as it featured many of the same allegations,

investigatory techniques, and developmental patterns seen across

the country (id. at 158). The court intended that its "lengthy

discussion of the facts and circumstances that Friedman asserts

led to his conviction" would "make the case that a further

inquiry by a responsible prosecutor's office is justified despite

a guilty plea entered under circumstances which clearly suggest

that it was not voluntary" (id. at 161). The court ultimately

concluded that "[t]he record here suggests a reasonable

likelihood that Jesse Friedman was wrongfully convicted" (id. at

159-160 [internal quotation marks omitted]).1

C.

After the Second Circuit issued its decision, thenNassau County District Attorney Kathleen M. Rice announced she

would reopen the case and convene a "Friedman Case Review Panel"

to oversee the reinvestigation. Senior prosecutors in the Nassau

County District Attorney's Office, who were not involved in the

original case nor part of the prior administration that

prosecuted petitioner, worked alongside an "Advisory Panel" of

1 Judge Raggi concurred in the judgment and joined all but

the part of the court's opinion that recounted petitioner's

assertions of the circumstances that led to his conviction and

the conclusion the court drew as to his innocence. However, she

agreed that "the facts alleged are disturbing and may well

warrant further inquiry by a responsible prosecutor's office"

(618 F3d at 161 [Raggi, J., concurring in part]).

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criminal justice and wrongful conviction experts. The

reinvestigation was conducted by the "Review Team" of

prosecutors, which had access to the District Attorney's entire

case file as well as the grand jury minutes. The "Advisory

Panel" advised the Review Team on "process issues," counseling

the prosecutors on how best to conduct a reinvestigation and

generally auditing whether the Review Team was operating in good

faith. The Advisory Panel did not itself conduct the

reinvestigation or weigh the credibility of witnesses, and it had

access only to those documents, some redacted, provided to it by

the District Attorney's office.

In the Review Team's final report, it concluded that

petitioner "was not wrongfully convicted" and that none of the

Second Circuit's principal concerns were substantiated by the

evidence. It distinguished the case from the moral panic cases

of the 1980s and 1990s on the grounds that the allegations in the

Friedman prosecution were plausible, the children involved were

older, and petitioner had pleaded guilty. The Advisory Panel

prefaced the report with its own statement that "the conclusions

expressed in the Review Team's Report are reasonable and

supported by the evidence it cites."

In 2012, before completion of the report but after the

District Attorney announced the appointment of the Advisory

Panel, petitioner filed a FOIL request for all documents provided

by the Nassau County District Attorney to the "Friedman Case

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Review Panel" and for all records concerning whether Advisory

Panel members were "members of the general public for purposes of

[FOIL] and Civil Rights Law § 50-b." By letter, the Nassau

County District Attorney's Office denied the request based on

multiple grounds: (1) Public Officers Law § 87 (2) (e) (iii),

which, the letter claimed, exempted all "statements of witnesses

compiled for law enforcement purposes, unless the witnesses have

testified at trial"; (2) Civil Rights Law § 50-b (1) (as applied

to FOIL through Public Officers Law § 87 [2] [a]), which exempts

from disclosure any document which "tends to identify" the victim

of a sex crime; (3) Public Officers Law § 87 (2) (e) (i), which

the District Attorney claimed exempted from disclosure

information that would interfere with an ongoing criminal

investigation;2 and (4) Public Officers Law § 87 (2) (g), which

exempted most inter- and intra-agency materials.3 The letter

also informed petitioner that the District Attorney did not

believe a compelling and particularized basis existed for

disclosing the grand jury transcripts, but that petitioner could

move for their release on those grounds in state court.

On his administrative appeal from the denial of his

2 The "ongoing investigation" in this case was the District

Attorney's reinvestigation.

3 Notably, the District Attorney did not invoke Public

Officers Law § 87 (2) (b), which exempts "records or portions

thereof that . . . if disclosed would constitute an unwarranted

invasion of personal privacy" within the meaning of Public

Officers Law § 89 (2).

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FOIL request, petitioner argued that courts had rejected the type

of blanket exemptions claimed by the District Attorney. The FOIL

Appeal Officer nevertheless upheld the asserted exemptions as

sufficiently particular.

D.

Petitioner subsequently commenced this proceeding

pursuant to CPLR article 78 against respondent, Kathleen M. Rice,

in her official capacity as the Nassau County District Attorney,4

seeking disclosure of his entire case file and the grand jury

minutes.5 The District Attorney responded that the court lacked

jurisdiction and sought dismissal of the petition, asserting that

petitioner had not yet exhausted his administrative remedies

since he had only requested documents shared with the Advisory

Panel rather than his entire case file. As to what had been

shared with the Advisory Panel, the District Attorney reasserted

that the material was exempt from disclosure under FOIL and Civil

Rights Law § 50-b (1).

4 Rice stepped down as District Attorney in 2015 and was

succeeded by Madeline Singas as acting District Attorney. Singas

was elected Nassau County District Attorney in 2016. 

5 Additionally, in June 2014, petitioner commenced a

defamation action against the District Attorney and two

Information Officers employed by her office, which Supreme Court

dismissed in 2015. Also in June 2014, petitioner filed a motion,

pursuant to Criminal Procedure Law § 440, to vacate his judgment

of conviction and dismiss the underlying indictments. Supreme

Court denied the motion to overturn the conviction but granted,

on consent, his request for a hearing on actual innocence. That

hearing has been stayed pending the resolution of this appeal.

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By this time, the reinvestigation was complete and the

Review Team had elected to disclose inter- and intra-agency

communications, rendering moot two of the prior four FOIL grounds

for withholding disclosure. The District Attorney nevertheless

maintained that the remaining documents were exempt, relying on

Civil Rights Law § 50-b (1) and the confidentiality exemption

contained in Public Officers Law § 87 (2) (e) (iii).6 As for the

grand jury minutes, the District Attorney argued that petitioner

had failed to demonstrate a particularized and compelling need

for their release, as required under Criminal Procedure Law §

190.25 (4) (a).

Supreme Court granted the petition and directed the

District Attorney to provide petitioner with all documents and

records in his case file, as well as the grand jury minutes, with

the names of three witnesses redacted.7 Pursuant to CPLR 5519

6 The District Attorney further claimed that all four FOIL

exemptions had been properly invoked at the time of petitioner's

request.

7 Those witnesses had contacted the court in response to

petitioner's notice of his request for access to his case file,

as required by Civil Rights Law § 50-b (2) (b). That provision

states that petitioners seeking the disclosure of documents

tending to identify the victim of a sex offense should "appl[y]

to a court having jurisdiction over the alleged offense,

demonstrate[] to the satisfaction of the court that good cause

exists for disclosure to that person[,]" and make "[s]uch

application . . . upon notice to the victim or other person

legally responsible for the care of the victim [as well as] the

public officer or employee charged with the duty of prosecuting

the offense[.]" Petitioner did not complain about the redaction

of the names of witnesses who, in response to the notice,

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(a), Supreme Court's judgment was stayed pending respondent's

appeal.

Thereafter, the Appellate Division reversed, denied the

petition, and dismissed the proceeding, with one Justice

dissenting (134 AD3d 826 [2d Dept 2015]). The court held that

petitioner did not need to exhaust his administrative remedies,

since it was clear from the District Attorney's response to the

initial FOIL request that further administrative proceedings

would have been futile. On the merits, the court concluded that

the case file was appropriately withheld under section 87 (2) (e)

(iii), which, according to Second Department precedent, exempted

from FOIL disclosure the statements of nontestifying witnesses as

presumptively confidential. The court further held that

petitioner did not demonstrate a compelling and particularized

need for the grand jury minutes.8

As discussed in her thoroughly-written opinion, the

dissenting Justice would have modified the judgment to direct the

specific disclosure of the redacted materials provided to the

Advisory Panel, as well as the case file, investigatory notes,

and grand jury minutes, subject to the redaction of the names of

the witnesses who had objected to the disclosure of their

objected to the disclosure of their identities, but he reserved

the right to do so. Supreme Court thus clarified that its

redaction order was given on consent of the parties. 

8 The parties agree that no court reviewed the grand jury

minutes.

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identities (134 AD3d at 831-832 [Barros, J, dissenting]). 

According to the dissent, the District Attorney failed to support

the withholding of the documents under section 87 (2) (e) (iii). 

The dissent identified a split between the Second Department’s

interpretation, which applies this exemption to all witness

statements obtained in the course of preparing for trial unless

used in open court, and decisions of the First, Third, and Fourth

Departments, as well as the federal courts, which only recognize

the exemption where the government can show an express promise of

confidentiality or circumstances from which confidentiality can

be inferred (see id. at 832-836). We granted petitioner leave to

appeal (27 NY3d 903 [2016]).

II.

Petitioner argues that the Second Department's

interpretation of FOIL impermissibly creates a blanket exemption

for all nontestifying witnesses and thus misinterprets the

statute and undermines its purpose. He claims that the Second

Department deviates from the interpretation of this provision

adopted by every other Department and the federal courts. 

Petitioner also asserts that he established a compelling and

particularized need for the grand jury minutes and that he should

be permitted access to the witness statements in his case file in

accordance with Civil Rights Law § 50-b (2) (b).

We conclude that the Second Department applied an

incorrect standard in determining the applicability of FOIL's

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confidentiality exemption to petitioner's request. Under section

87 (2) (e) (iii), sources and information may be withheld only

upon a specific showing of an express promise of confidentiality

to the source, or a finding that, under the circumstances of the

particular case, the confidentiality of the source or information

can be reasonably inferred. 

A. Exhaustion

As a threshold matter, we reject respondent's argument

that petitioner's claim for his entire case file is unreviewable

because he did not include that specific demand in his FOIL

request. Petitioner's FOIL request sought "the documents

provided by the Nassau County District Attorney to the entity

known as the 'Friedman Case Review Panel.'" That language tracks

the District Attorney's earlier press release that four experts

had been appointed to a "Friedman Case Review Panel" who would

"join prosecutors in review of" petitioner's case, to "work

alongside" her office and "oversee the investigation." Here,

taken in context and under the circumstances, petitioner's

request reasonably described, and therefore clearly sought, all

documents that would be part of the reinvestigation process

called for by the District Attorney (see Public Officers Law § 89

[3]).

Even if that were not the case, under the particular

circumstances presented here, petitioner does not have to restart

the FOIL process anew. The general rule requiring a party to

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exhaust administrative remedies before seeking judicial review of

an agency's determination "need not be followed . . . when resort

to an administrative remedy would be futile" (Watergate II Apts.

v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). As every judge

who has considered the matter properly concluded, the District

Attorney's letter denying petitioner's FOIL request clearly

established that respondent's office would not release any

documents to petitioner from the Friedman case file absent a

court order, rendering futile any further attempts at

administrative review. The letter informed petitioner that the

information he requested was only being shared with the Advisory

Panel because its members had sworn an oath of confidentiality

and were operating "as an extension of [the prosecutor's]

office." As a general matter, the letter went on, the documents

he sought were "not available to the general public," were

"confidential under Civil Rights Law § 50-b," and so were "not

available to you or others who seek them under FOIL." As a

member of the general public -- which is, as we have long

maintained, the status of anyone seeking documents under FOIL

(see Matter of John P. v Whalen, 54 NY2d 89, 99 ["(O)ne who seeks

access to records under the Freedom of Information Law (does so)

as a member of the public(.)"]) -- petitioner was never going to

receive access to any of the documents he wanted from the

District Attorney's office. In other words, since the District

Attorney did not grant the Advisory Panel access to the entire

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unredacted case file, it follows that she similarly would have

denied access to petitioner. Indeed, the District Attorney's

unwavering position throughout this litigation has been that all

information sought by petitioner should be subject to a blanket

exemption from disclosure. Thus, even assuming any ambiguity in

petitioner's FOIL request, an additional request for information

provided specifically to the Review Team that was not disclosed

to the Advisory Panel would have been futile.9

"The exhaustion rule . . . is not an inflexible one,"

and should be applied where it "furthers the salutory goals of

relieving the courts of the burden of deciding questions

entrusted to an agency, preventing premature judicial

interference [with the work of the agency], and affording the

agency the opportunity, in advance of possible judicial review,

9 The dissent and respondent imply that the original case

file may contain material that was not shared with the Advisory

Panel and does not fit within a FOIL exemption invoked by the

District Attorney in her original denial (dissenting op at 3-4). 

However, by the District Attorney's own admission, the Advisory

Panel only had access to certain materials in the case file

because of its special status. It stands to reason that any

documents that would have been reachable under FOIL -- that is,

that the public, with its less privileged status, might have been

able to request -- would also have been available to the Advisory

Panel.

Moreover, at no point in this litigation has respondent ever

indicated what additional case file material might be protected,

what additional FOIL grounds respondent would have invoked to

prevent their release, or even that respondent would have invoked

other FOIL exemptions at all. In fact, contrary to the dissent's

assertion, all the material disclosed as part of the Conviction

Integrity Review had initially been withheld under a FOIL

exemption invoked in the District Attorney's first denial letter.

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to prepare a record reflective of its 'expertise and judgment'"

(Watergate II Apts., 46 NY2d at 57 [internal citations omitted]). 

Those goals would not be served by mechanical application of the

rule to petitioner's case. Under the facts presented here, it

would be an exercise in futility and a waste of administrative

and judicial resources to require petitioner to request documents

merely for respondent to restate the same bases for denial.

B. FOIL Exemption Section 87 (2) (e) (iii)

The purpose of FOIL is "[t]o promote open government

and public accountability" (Matter of Gould v New York City

Police Dept., 89 NY2d 267, 274 [1996]). The law's "premise [is]

that the public is vested with an inherent right to know and that

official secrecy is anathematic to our form of government"

(Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). One of

FOIL's salient features is its capacity to expose "abuses on the

part of government; in short, 'to hold the governors accountable

to the governed'" (id., quoting NLRB v Robbins Tire & Rubber Co.,

437 US 214, 242 [1978]). In furtherance of the legislature's

policy of disclosure, "FOIL provides the public with broad

'access to the records of government' [and] [a]n agency must

'make available for public inspection and copying all records'

unless it can claim a specific exemption to disclosure" (Matter

of Data Tree, LLC v Romaine, 9 NY3d 454, 462 [2007], quoting

Public Officers Law §§ 84, 87 [2], 89 [3]). These "exemptions

are to be narrowly interpreted so that the public is granted

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maximum access to the records of government" (id. at 462). "Thus

the agency does not have carte blanche to withhold any

information it pleases. Rather it is required to articulate

particularized and specific justification . . . to exempt its

records from disclosure. Only where the material requested falls

squarely within the ambit of one of these statutory exemptions

may disclosure be withheld" (Matter of Fink, 47 NY2d at 571

[internal citation omitted]).

As relevant to this appeal, an agency may withhold

documents "compiled for law enforcement purposes and which, if

disclosed, would . . . identify a confidential source or disclose

confidential information relating to a criminal investigation"

(Public Officers Law § 87 [2] [e] [iii]). The Second Department

categorically held below that "witness statements and other

documents containing information provided to law enforcement

officials during [a] criminal investigation by witnesses who did

not testify at trial [are] exempt from disclosure under [section]

87 (2) (e) (iii)" (134 AD3d at 828). In so holding, the Second

Department purported to follow its prior departmental case law

that "the statements of nontestifying witnesses are confidential,

and that [this] 'cloak of confidentiality' is removed 'once the

statements have been used in open court'" (id., quoting Matter of

Moore v Santucci, 151 AD2d 677, 679 [2d Dept 1989]).

This precedent refers back to Second Department

decisions that were decided under a former and no longer valid

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FOIL provision. Matter of Knight v Gold (53 AD2d 694 [2d Dept

1976]), the foundation for Matter of Moore v Santucci (151 AD2d

677 [2d Dept 1989]), relied on below, was based on a prior

version of FOIL which broadly exempted all information that was

"part of investigatory files compiled for law enforcement

purposes" (former Public Officers Law § 88 [7] [d] [L 1974, ch

579 § 3]). Of particular note, this prior version of FOIL made

no reference to confidential sources or confidential information. 

That is to say, under the plain language of that statute,

"investigatory files compiled for law enforcement purposes,"

including witness statements, could be withheld from disclosure

irrespective of the confidential nature of the information or its

source. That section of the statute was amended in 1977, and

replaced with the enumerated categories set forth today in Public

Officers Law §§ 87 (2) (e) (i)-(iv), including the exemption at

issue here. The legislature thus discarded the broad protections

from disclosure found in the previous version of FOIL and adopted

discrete, limited exemptions, reaffirming the law's general

policy of public access to government documents (cf. Matter of

Lesher v Hynes, 19 NY3d 57, 64-65 [2012] [describing Congress'

1974 amendments to FOIA, which replaced a generic exemption from

disclosure for information compiled for law enforcement purposes

with six specific exemptions, and noting that the New York

legislature's 1977 amendments to FOIA "followed suit"]).

The amendments were widely understood at the time to

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"reverse[] the presumption" of the old law, according to which

"records [were] deniable unless they f[ell] within one of nine

limited categories of records" that could be disclosed. Instead,

the amendments "state[d] that all records . . . are accessible

unless specifically listed as deniable" (Mario M. Cuomo,

Secretary of State, News Release, July 27, 1977, at 5, Bill

Jacket, L 1977, ch 933 [internal quotation marks omitted]). 

Members of law enforcement objected to the bill for this very

reason, observing that it replaced a presumption of nondisclosure

and broad protections for all materials gathered in the course of

law enforcement investigations with a presumption of disclosure

and a narrow set of exemptions for only certain kinds of law

enforcement materials, which could be invoked at only certain

times (see e.g. William G. Connelie, Superintendent, New York

State Police, Mem re: Senate 16-A, July 29, 1977, at 5-6, Bill

Jacket, L 1977, ch 933). The Second Department's jurisprudence

thus lacks historical and textual foundation.10

Nevertheless, respondent advocates for a blanket rule

that categorically permits the withholding of statements of

10 The court's interpretation here is also inconsistent with

the Second Department's reading of Public Officers Law § 89 (2)

(b) (v), another FOIL confidentiality exemption, which generally

protects the "disclosure of information of a personal nature

reported in confidence to an agency and not relevant to the

ordinary work of such an agency." There, that court construed

confidentiality to attach only to information gathered from

"individuals [who] received an express or implied promise of

confidentiality" (Matter of Prall v New York City Dept. of

Corrections, 129 AD3d 734, 736 [2d Dept 2015]).

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nontestifying witnesses without regard to the specific facts and

circumstances of the subject case.11 In so doing, respondent

misconstrues section 87 (2) (e) (iii) and FOIL's purpose by

applying the exemption expansively rather than narrowly. 

Respondent's proposed rule thus constricts the broad access to

which the public is entitled under the law. As our Court has

stated, FOIL "established a general policy [in favor of]

disclosure" (Matter of Fink, 47 NY2d at 571) and so "exemptions

[to FOIL] are to be narrowly interpreted so that the public is

granted maximum access to the records of government" (Data Tree,

9 NY3d at 462, citing Matter of Capital Newspapers, Div. of

Hearst Corp. v Whalen, 69 NY2d 246, 252 [1987]). The rule

advocated by respondent would essentially reinstate the

previously discarded non-disclosure presumption, clearly in

contravention of the statute's purpose and settled case law.

In addition, such an interpretation of section 87 (2)

(e) (iii) cannot be reconciled with the statutory language, as it

effectively excises the word "confidential" from the statutory

exemption. This we cannot do, because "[i]n the construction of

a statute, meaning and effect should be given to all its

language, if possible, and words are not to be rejected as

11 To the extent respondent's argument may be interpreted as

limited solely to witness statements, we note that section 87 (2)

(e) (iii) also applies to "confidential information" without

regard to source. In accordance with the statute's plain text,

the rule we elaborate here applies to sources and information

alike.

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superfluous when it is practicable to give each a distinct and

separate meaning" (McKinney's Cons Laws of NY Book 1, Statutes §

231; see also McKinney's Cons Laws of NY Book 1, Statutes § 98

["(E)ffect and meaning must, if possible, be given to the entire

statute and every part and word thereof."]; Majewski v

Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]). 

If the legislature intended for the exemption to apply to the

statements of all witnesses, or even just those who do not

testify at trial, it would simply have stated as much. It did

not, and instead used the word "confidential" to delineate the

type of statements and sources not subject to FOIL disclosure. 

Given that "the Legislature established a general policy of

disclosure by enacting the Freedom of Information Law" (Matter of

Fink, 47 NY2d at 571), we cannot undermine that policy by

exempting a large category of information from FOIL in a manner

inconsistent with the plain language of the statute.

Were we to construe the law otherwise, we would be

creating an unjustified and impermissible precondition on

disclosure. Under respondent's proposed rule, the only witness

statements accessible under FOIL are statements that have already

been made public in open court. In practice, this restricts

access to witness statements under FOIL to statements that have

already been disclosed at a trial. Nowhere does section 87 (2)

(e) (iii), however, so much as mention the need for prior public

disclosure, whether at a trial or any other judicial proceeding,

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as a disclosure precondition. The legislature did not limit

disclosure under FOIL to information released through post-hoc

publication, and we decline to impose such a limitation

ourselves.

Respondent alleges that its proposed categorical

exemption is essential to encourage the cooperation of

individuals who might otherwise refrain from disclosing

confidential information if they knew that they could be

identified as the source. This circular reasoning is

unpersuasive since the law by its terms protects confidential

sources (see Public Officers Law § 87 [2] [e] [iii] [exempting

"confidential source(s)" from disclosure under FOIL]).

Moreover, a blanket exemption for any statement made to

law enforcement on the ground that it is inherently confidential

admits of absurd results. There is no basis to assume that every

person who communicates with law enforcement in the course of a

criminal investigation expects that their name and each and every

statement they make will be held in confidence. So interpreted,

the exemption would cover even an innocuous statement to a police

officer or a comment that "relates," but is obviously

insignificant, to a criminal investigation. Consider, for

example, a nontestifying witness who avers merely that "I did not

see anything," or a witness who merely corroborates undisputed

and uncontroversial facts. Respondent concedes that statements

of such nature are not "confidential" under any accepted

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- 23 - No. 56

understanding of the term, yet, the rule for which respondent

advocates would seem to place those statements under a "cloak of

confidentiality."

Unsurprisingly, respondent's interpretation of section

87 (2) (e) (iii) is an outlier. Every other Appellate Division

Department, in reliance on the current version of FOIL, has

concluded that "defendants are not entitled to a blanket

exemption from disclosure" (Brown v Town of Amherst, 195 AD2d

979, 979 [4th Dept 1993]). The majority rule for New York Courts

has been that "[s]tatements by a witness must be disclosed absent

a showing that [the witness] was a confidential informant or was

promised anonymity" (Matter of Gomez v Fisher, 74 AD3d 1399, 1401

[3d Dept 2010] [internal citations omitted]; see also Matter of

Exoneration Initiative v New York City Police Dept., 114 AD3d

436, 440 [1st Dept 2014]). Indeed, in Matter of Exoneration

Initiative, the First Department stated explicitly that

information about an unnamed informant does not fall within

section 87 (2) (e) (iii) "in the absence of any evidence that

th[e] person received an express or implied promise of

confidentiality" (114 AD3d at 440; see also Matter of John H. v

Goord, 27 AD3d 798, 800 [3rd Dept 2006] [overruling a claimed

FOIL confidentiality exemption where an in camera review

persuaded the court that "the records at issue . . . (did not)

contain any suggestion that the participating witnesses

qualif(ied) as confidential sources, and . . . d(id) not reveal

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- 24 - No. 56

any source or disclose any information which would be deemed

confidential," while withholding disclosure under a separate FOIL

exemption "inasmuch as disclosure could endanger the life or

safety of a person"] [internal quotation marks and citations

omitted]).12

A blanket exemption for witness identifications and

statements would also be contrary to the interpretation of 5 USC

§ 552 (b) (7) (D), the FOIA counterpart to section 87 (2) (e)

(iii).13 As we have observed, "[f]ederal case law and

12 Hakwins v Kurlander (98 AD2d 14 [4th Dept 1983]), relied

on by the Second Department for the proposition that "[t]he rule

holding that . . . statements [of nontestifying witnesses] are

inherently confidential is sound as it encourages private

citizens to furnish controversial information to law enforcement

officials" (Matter of Friedman, 134 AD3d at 829 [internal

quotation marks omitted]), is not to the contrary. In that case

the witnesses had been given explicit assurances of

confidentiality (see Hawkins,98 Ad2d at 17 ["For a court to hold

that a promise of confidentiality can be breached merely because

the investigation did not lead to criminal charges would raise a

red flag for future witnesses who might well decline to reveal

confidences to the District Attorney because of the risk of

public disclosure."]). The federal case cited in Hawkins, and on

which the Second Department majority also relied, supports the

rule we adopt here (see Pope v United States, 599 F2d 1383, 1387

[5th Cir 1979] [upholding a decision to withhold witness

statements from disclosure under FOIA's confidentiality exemption

not because the witnesses did not testify but because "(t)he

substance of the three documents and the circumstances under

which the information was given (to the agency) convince us that

there was an implied assurance of confidentiality associated with

these communications"]).

13 The federal statute exempts from disclosure information

from confidential sources, while the New York law protects

confidential sources and information (compare 5 USC § 552 [b] [7]

[D] [exempting from disclosure "records or information compiled

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- 25 - No. 56

legislative history . . . are instructive" when interpreting a

FOIL provision "patterned after the Federal analogue" (Matter of

Lesher v Hynes, 19 NY3d at 64, quoting Matter of Fink, 47 NY2d at

572 n).

The United States Supreme Court has explained that the

FOIA confidentiality exemption (5 USC § 552 [b] [7] [D]) applies

only where there is "an express assurance of confidentiality or

for law enforcement purposes, but only to the extent that the

production of such law enforcement records or information . . .

could reasonably be expected to disclose the identity of a

confidential source, including a State, local, or foreign agency

or authority or any private institution which furnished

information on a confidential basis, and, in the case of a record

or information compiled by criminal law enforcement authority in

the course of a criminal investigation or by an agency conducting

a lawful national security intelligence investigation,

information furnished by a confidential source"] and U.S. Dept of

Justice v Landano, 508 US 165, 172 [1993] ["Under Exemption 7(D),

the question is not whether the requested document is of the type

that the agency usually treats as confidential, but whether the

particular source spoke with an understanding that the

communication would remain confidential."] with Public Officers

Law § 87 [2] [e] [iii] [exempting from disclosure "records . . .

compiled for law enforcement purposes and which, if disclosed,

would . . . identify a confidential source or disclose

confidential information relating to a criminal investigation"]). 

The difference in language between the FOIA and FOIL provisions

does not diminish the usefulness of comparison with the federal

analogue. Even though the federal statute does not by its terms

apply to "confidential information," federal courts have

sometimes interpreted the statute to cover the same kind of

"confidential information" protected in New York on a similar

theory (see e.g. Pope, 599 F2d at 1386-87 [withholding witness

statements alleging attorney misconduct as confidential because

"disclosure of the ( documents') contents would inevitably reveal

their source" and "from the content and other circumstances"

surrounding the documents, the court concluded the information

was provided on an inferred assurance of confidentiality"]

[internal quotation marks omitted]).

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- 26 - No. 56

in circumstances from which such an assurance could be reasonably

inferred" (U.S. Dept. of Justice v Landano, 508 US 165, 172

[1993] [internal quotation marks omitted]; see also Church of

Scientology Intern. v U.S. Dept. of Justice, 30 F3d 224, 238 [1st

Cir 1994] [applying Landano and rejecting several alleged FOIA

confidentiality exemptions on the grounds that the government

failed to establish that the documents withheld came from a

source that had received an express promise of confidentiality,

or that the circumstances warranted implying confidentiality];

Davin v U.S. Dept. of Justice, 60 F3d 1043 [3rd Cir 1995] [same];

Halpern v FBI, 181 F3d 279, 298-300 [2d Cir 1999] [applying

Landano and finding no express promise of confidentiality, but

finding that the circumstances supported some implicit

confidentiality with respect to some of the requested

information]). The Supreme Court has also precisely rejected

respondent's argument here -- that all law enforcement sources

are inherently confidential. Instead, the Court has held that

whether a source is confidential should be determined under a

"particularized approach", which may include consideration of

"the character of the crime" and "the source's relation to the

crime" (508 US at 180,179). This reasoning applies with equal

force to FOIL. Ultimately, a determination of confidentiality

should turn on an evaluation of the facts and circumstances

surrounding the particular source or requested information.

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- 27 - No. 56

III.

The legislature’s policy of broad public access, as

expressed in FOIL, dictates that the exemption for confidential

sources and information be narrowly circumscribed. Therefore

disclosure under FOIL can only be refused pursuant to section 87

(2) (e) (iii) if the agency presents a "particularized and

specific justification for denying access" (Matter of Capital

Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566

[1986]), based on an express promise of confidentiality to the

source, or by establishing that, under the circumstances of the

particular case, the confidentiality of the source or information

can be reasonably inferred. 

Application of this rule is case and information

specific, and depends on the particular facts and circumstances. 

In determining whether information obtained in the course of a

criminal investigation should be treated as confidential or

whether a source spoke on the assumption that the source's

identity or statements would remain confidential, courts may

consider, as they deem relevant, such factors as the nature of

the crime, the source of the information in relation to the

crime, and the content of the statements or information. Where

the content of a statement or information and the circumstances

surrounding its compilation by law enforcement convince a court

that its confidentiality can be reasonably inferred, it may be

withheld or released with appropriate redactions pursuant to

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- 28 - No. 56

section 87 (2) (e) (iii). Otherwise, absent an explicit

assurance of confidentiality, it may not be withheld or redacted

under that FOIL exemption.14

Here, because the Second Department majority

misconstrued the FOIL exemption asserted by respondent, the order

below must be reversed and the matter remitted for consideration

under the correct standard. The People remain free, on remittal,

to present evidence that the documents previously withheld are

exempt under section 87 (2) (e) (iii) in accordance with the

standard articulated in this opinion. Since the Appellate

Division did not reach petitioner's Civil Rights Law argument and

Supreme Court did not review the grand jury minutes in

14 Of course other statutory exemptions may apply. The

legislature has enacted specific provisions to protect witnesses

and the accused from "unwarranted invasion[s] of [their] personal

privacy" (Public Officers Law § 87 [2] [b]) and, in some

circumstances, the disclosure of their identity (see e.g. Civil

Rights Law § 50-b). The FOIL provision at issue here, though,

was not primarily designed to protect victims, witnesses, or

accused persons. As its text and legislative history make clear,

this exemption is designed to balance the public's right to

information with the need to maintain the integrity of police

investigations involving confidential information and sources.

Contrary to the dissent's contention, our rule does not lead

to the conclusion that "witness statements made in connection

with [child sex offense prosecutions will be] routinely

discoverable under FOIL" (dissenting op at 7). As we have

explained, each FOIL request must be analyzed on its own terms,

based on the specific facts and circumstances it presents. For

the same reason, a court analyzing whether an agency's invocation

of section 87 (2) (e) (iii) is justified should not place

"additional weight on the nature of the crime" as a categorical

rule (dissenting op at 6), but must consider the specific facts

and circumstances of each particular case. 

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- 29 - No. 56

determining whether petitioner met his burden to justify access

to the minutes, we decline to reach those questions. Instead, we

consider it prudent under the unique circumstances of this case

to remit them, along with the FOIL matter, to Supreme Court for

its consideration of all these claims.

IV.

We recognize that petitioner seeks these documents to

support his claim of actual innocence and that our decision does

not answer whether respondent may deny disclosure. We are also

acutely aware that petitioner filed his FOIL request years ago

and it remains unresolved, despite the legislature's intention to

provide public access to government documents within a reasonable

time frame. It is our intention that enunciation of the proper

standard and our remittal to Supreme Court should facilitate the

timely adjudication of petitioner's claims.

Accordingly, the order of the Appellate Division should

be reversed, with costs, and the matter remitted to Supreme Court

for further proceedings in accordance with this opinion.

- 29 -
Matter of Friedman v Rice

No. 56 

WHALEN, J.(dissenting in part):

I agree with the majority opinion insofar as it holds

that the Appellate Division read the confidentiality exemption of

FOIL (Public Officers Law § 87 [2] [e] [iii]) too broadly; that

witness statements should be protected from disclosure pursuant

to that exemption only where a witness was promised

confidentiality or the circumstances were such that the

confidentiality of the information provided could reasonably be

inferred; and that this proceeding should be remitted for Supreme

Court to determine the applicability of the confidentiality

exemption to the material sought in petitioner's initial FOIL

request under the proper standard. I further agree with the

majority that upon remittal, the Civil Rights Law § 50-b issues

raised by the parties may be considered, and petitioner's request

for disclosure of the grand jury minutes should likewise be

determined following an in camera review of the minutes. I

respectfully dissent, however, from the majority's conclusion

that petitioner was not required to exhaust his administrative

remedies with respect to his request for his "entire case file,"

i.e., documents outside the scope of his initial FOIL request. I

also write separately because I do not fully agree with the

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- 2 - No. 56

majority's discussion of how an agency can meet its burden of

establishing that information was intended to be confidential for

purposes of the FOIL confidentiality exemption in a case like

this one that involves allegations of sexual offenses committed

against children.

I.

Beginning with the exhaustion issue, I cannot agree

with the majority that this record reflects that it would have

been futile for petitioner to seek his entire case file from the

District Attorney through the FOIL process (see Town of Oyster

Bay v Kirkland, 19 NY3d 1035, 1038-1039 [2012], cert denied 568

US 1213 [2013]; cf. Watergate II Apts. v Buffalo Sewer Auth., 46

NY2d 52, 57 [1978]).1 It is not a fair interpretation of the

District Attorney's FOIL denial letter to say that it "clearly

established that [the District Attorney] would not release any

documents absent a court order" (majority op at 14). Petitioner

asserts that his failure to request the "entire case file"

originally resulted from a lack of information regarding the

distinction between the Review Team and the Advisory Panel, and

that is the only explanation given for the request's expansion

from the original FOIL request to the article 78 petition. Even

accepting, for the sake of argument, the premise that petitioner

1 Because the District Attorney preserved her exhaustion

argument below, it is properly before us as an alternative ground

for an affirmance of the Appellate Division's order in part (see

generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60

NY2d 539, 545-546 [1983]). 

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- 3 - No. 56

may have been unaware (through no fault of his own) of the

difference between the Review Team and the Advisory Panel (cf.

Walton v New York State Dept. of Correctional Servs., 8 NY3d 186,

196 [2007] ["hindsight cannot be used to determine whether

administrative steps were futile"]), it is evident that the

District Attorney did not view petitioner's FOIL request as one

for "all documents that would be part of the reinvestigation

process" (majority op at 13) or "the entire case file" as stated

in petitioner's article 78 petition, and did not respond as

though all such documents had been requested.2 Indeed, as the

District Attorney points out in her brief, some items that are

presumably in the case file3 are plainly not within the FOIL

exemptions she invoked in the denial letter, and have since been

made public with the final Conviction Integrity Review report.4

2 The majority presumes that the Advisory Panel had access

to documents from the case file otherwise reachable under FOIL

(majority op at 15 n 9). But it does not follow from the fact

that "the Advisory Panel only had access to certain materials in

the case file because of its special status" that it necessarily

received and considered every remaining piece of disclosable

material in the entire case file. In any event, we need not

speculate, as the sole issue is what material the Advisory Panel

actually received, and whether that material is disclosable under

FOIL. Any remaining items not disclosed to that panel are not

the proper subject of this proceeding.

3 The entire case file is not part of the record before us,

and there is no basis to question the District Attorney's

assertion that it was not before Supreme Court either.

4 The majority's claim that the District Attorney withheld

those items under FOIL (majority op at 15 n 9) presupposes that

she viewed them as within the scope of petitioner's request.

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- 4 - No. 56

It is likely that there may be documents in petitioner's case

file that are subject to as-yet-uninvoked FOIL exemptions, and

the District Attorney has not yet been afforded the requisite

opportunity to make a record with respect to any such documents

(see Matter of Carty v New York City Police Dept., 41 AD3d 150,

150 [1st Dept 2007]; see generally Matter of Yarbrough v Franco,

95 NY2d 342, 347 [2000]; Watergate II Apts., 46 NY2d at 57). The

majority faults the District Attorney because she has never

"indicated what additional case file material might be protected,

what additional FOIL grounds respondents would have invoked to

prevent their release, or even that respondents would have

invoked other FOIL exemptions at all" (majority op at 15 n 9). 

This is precisely because the request for the "entire case file"

was unexhausted, and as a result the District Attorney was never

given the opportunity to do so. Accordingly, I would affirm the

Appellate Division order to the extent that it denied so much of

the petition as sought disclosure under FOIL of documents other

than those provided by the District Attorney to the Advisory

Panel (see 134 AD3d at 831; see generally Matter of Fappiano v

New York City Police Dept., 95 NY2d 738, 749 [2001]).

 

II. 

Turning to the confidentiality exemption, I agree with

the majority that the Appellate Division's analysis -- which held

the exemption applicable to any statement made by a witness who

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- 5 - No. 56

did not testify at a trial (see 134 AD3d at 828-829) -- had its

roots in a materially different version of FOIL (see Matter of

Moore v Santucci, 151 AD2d 677, 679 [2d Dept 1989], citing Matter

of Knight v Gold, 53 AD2d 694, 694 [2d Dept 1976], lv dismissed

43 NY2d 841 [1978]; see generally Matter of Lesher v Hynes, 19

NY3d 57, 64-66 [2012]), and is irreconcilable with the principle

that FOIL exemptions must be narrowly construed (see Matter of

Data Tree, LLC v Romaine, 9 NY3d 454, 462-463 [2007]; Matter of

Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566

[1986]). I also agree that the exemption should apply to witness

statements only where a witness is promised confidentiality or

the confidentiality of the information provided by the witness

can be reasonably inferred, consistent with federal case law5 and

with Appellate Division cases from outside the Second Department

(see e.g. U.S. Dept. of Justice v Landano, 508 US 165, 172

[1993]; Matter of Exoneration Initiative v New York City Police

Dept., 114 AD3d 436, 440 [1st Dept 2014]; Matter of Carnevale v

City of Albany, 68 AD3d 1290, 1292 [3d Dept 2009]). 

While I generally agree with the majority's

identification of factors to consider in evaluating whether

confidentiality should be inferred (majority op at 27-28), I

would place additional weight on the nature of the crime in

5 Federal cases interpreting the Freedom of Information Act

are instructive when interpreting section 87 (2) (e) of FOIL,

which was patterned after its federal counterpart (see Matter of

Madeiros v New York State Educ. Dept., — NY3d —, 2017 NY Slip Op

07209 at *6 [Oct. 17, 2017]; Lesher, 19 NY3d at 64).

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- 6 - No. 56

proceedings involving sensitive matters such as alleged sexual

offenses committed against children. The United States Supreme

Court noted in Landano that the character of the crime being

investigated may constitute a "generic circumstance[]" from which

"an implied assurance of confidentiality [to witnesses] fairly

can be inferred" (508 US at 179). As a matter of common sense, a

witness who provides a statement alleging that he or she saw a

sexual offense committed against a child does so with the

reasonable expectation that the statement will be kept

confidential "except to the extent . . . necessary for law

enforcement purposes" (Landano, 508 US at 174). The inference of

confidentiality is even stronger when the statement is given by a

child, and stronger still when the child witness is also the

victim of the alleged sexual offense. Where an agency

establishes that material requested under FOIL consists of

statements made by children concerning the investigation of a

claim of sexual abuse, the confidentiality exemption should apply

in the absence of circumstances that demonstrate that

confidentiality was not intended. Notably, child sex offense

prosecutions often end in plea bargains for the very purpose of

protecting victims from having to testify publicly. That purpose

would be subverted if witness statements made in connection with

those prosecutions were routinely discoverable under FOIL and

thus available not only to former defendants like petitioner

seeking to establish their actual innocence but equally to any

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- 7 - No. 56

member of the public regardless of the purpose for which the

statements are sought (see Matter of Gould v New York City Police

Dept., 89 NY2d 267, 274 [1996]; Matter of John P. v Whalen, 54

NY2d 89, 99 [1981]; Matter of Bellamy v New York City Police

Dept., 59 AD3d 353, 355 [1st Dept 2009]). Nonetheless, because

there has not yet been an analysis of the confidentiality of the

witness statements here under the proper standard, I agree with

the majority that a remittal for that purpose is in order. I

would therefore modify the Appellate Division order by

reinstating so much of the petition as sought disclosure of the

materials provided to the Advisory Panel and the grand jury

minutes, and I would remit the matter to Supreme Court for

further proceedings in accordance with this opinion. 

* * * * * * * * * * * * * * * * *

Order reversed, with costs, and matter remitted to Supreme Court,

Nassau County, for further proceedings in accordance with the

opinion herein. Opinion by Judge Rivera. Judges Stein, Fahey,

Feinman and Peters concur. Judge Whalen dissents in part in an

opinion, in which Judge Garcia concurs. Chief Judge DiFiore and

Judge Wilson took no part.

Decided November 21, 2017 

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