April 3, 2012 decision by Court of Appeals offers authority to gain access to records or portions thereof during the course of a criminal prosecution, within limitations. Lesher v Hynes
Subsequent to the Second Department decision, Pittari v Pirro (258 AD2d 202, 696 NYS2d 167) in 1999, some law enforcement and prosecutorial agencies have refused to share investigatory and arrest records pursuant to the Freedom of Information Law, pending the adjudication of a criminal proceeding based on §87(2)(e)(i) of the Freedom of Information Law. That provision permits an agency to deny access to “records compiled for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations or judicial proceedings.” The Court of Appeals’ recent ruling in Lesher v Hynes clarifies that FOIL does not permit a blanket denial of access based on a generic characterization of such records.
As background, in the late 1990s, Stephen Pittari was the Chief Attorney of the Legal Aid Society of Westchester County when he made a FOIL request for documents related to the arrest and prosecution of his client, Carlos Cajigas, as well as documents related to the investigation of Cajigas’ case, including all related complaint and complaint follow-up reports, interviews of witnesses and police activity logs. The Office of the Westchester County District Attorney denied access based on §87(2)(e)(i). The Supreme Court’s dismissal of Pittari’s petition was affirmed by the Appellate Division.
Summarily discounting Gould v New York City Police Department (89 NY2d 267, 653 NYS2d 54 ), because the requests in Gould were made after criminal proceedings had concluded, the Appellate Division held that disclosure of any records during the course of a criminal proceeding would have a chilling effect on the pending prosecution. (Pittari, 258 AD2d at 207.) Relying on federal case law, the Appellate Division noted the similarity between Exemption 7(A) of the federal Freedom of Information Act and the basis for non-disclosure given by the Westchester District Attorney’s office, specifically, §87(2)(e)(i). The court cited the decision in NLRB v Robbins Tire & Rubber Co. (437 US 214, 228-229 ), in which the United States Supreme Court held that neither the legislative history nor statutory language of the exception supported the proposition that the determination of whether disclosure “would interfere with enforcement proceedings” must be made on an individual case by case basis. Rather, the court held that “generic determinations” may be made, and that in “particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement proceedings’” (Robbins, 437 US at 236).
In our view, that analysis has been problematic, for it appears to conflict with the Court of Appeals’ holding in Gould. Despite the defendants’ post conviction status, at the very beginning of Gould, the Court addressed the tension between the disclosure of documents during a criminal action pursuant to CPL Article 240 and the Freedom of Information Law, as follows:
“Access to government records does not depend on the purpose for which the records are sought. We recognize that petitioners seek documents relating to their own criminal proceedings, and that disclosure of such documents is governed generally by CPL article 240 as well as the Rosario and Brady rules. However, insofar as the Criminal Procedure Law does not specifically preclude defendants from seeking these documents under FOIL, we cannot read such a categorical limitation into the statute (see, Public Officers Law § 87  [a]; accord, Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 81 [absent an express provision or unequivocal legislative intent so indicating, CPLR article 31--the civil litigation disclosure article--is not a statute specifically exempting public records from disclosure under FOIL])” (Gould, 89 NY2d at 274).
In Lesher v Hynes., a request for records was made prior to the adjudication of criminal charges against the defendant. Michael Lesher, an attorney and author, made multiple requests to the District Attorney of Kings County for documents relating to Avrohom Mondrowitz, who, after being indicted by a grand jury for multiple counts of sexual abuse involving young boys, fled to Israel.
Significantly, the Court of Appeals held that §87(2)(e)(i) does not apply to all records placed in an investigation file. While the agency could identify the generic kinds of documents for which the exemption was claimed and the generic risks posed by disclosure of these categories of documents, “[p]ut slightly differently,…” the Court wrote, “…the agency must still fulfill its burden under §89(4)(b) to articulate a factual basis for the exemption” (Lesher, at 7).
Further, “[o]f course, Public Officers Law §87(2)(e)(i) ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course” (Lesher, at 8).
Accordingly, the Court of Appeals ruling in Lesher reaffirms the public’s right to access records compiled for law enforcement purposes until and unless the government can articulate a factual basis for the exemption. The standard imposed by Gould, in our opinion, is confirmed in Lesher and continues to require a particularized and specific justification to deny access to records.