By Adam Shanks (Legislative Gazette)
February 21, 2012
The FOIL law, which is commonly used by investigative journalists and good-government groups, gives citizens access to official government documents that have not been released, although exceptions can be made by officials when the information is sensitive.
In the case Lesher vs. Hynes, heard in the state's Court of Appeals last week, there is disagreement, which began in 2007, over what constitutes sensitive information – what can be withheld by the government, and what must be handed over.
The issue began in 1984, in Brooklyn, when an Orthodox Jewish man and alleged sexual abuser of children, Avrohom Mondrowitz, fled to Israel — where he still resides today — before a warrant for his arrest could be obtained.
While still in Israel, in 1985 Mondrowitz was indicted on five counts of sodomy in the first degree, along with nine other crimes, before a jury in Brooklyn. Attempts by then Kings County District Attorney Elizabeth Holtzman to extradite Mondrowitz, however, failed.
Twenty-two years later, in 2007, Kings County District Attorney Charles Hynes attempted by extradite Mondrowitz from Israel again. A legal battle ensued, which resulted in a 2010 decision by the Israeli Supreme Court that Mondrowitz would not be extradited.
In 2007, investigative journalist and attorney Michael Lesher filed a FOIL request with the Brooklyn district attorney's office, asking for all documents related to the Mondrowitz case.
Lesher believed the documents might provide insight into why Hynes, who is now in his sixth term, had not pressed for extradition sooner. His intuition is that Hynes didn't press for the extradition because of the strong influence the Orthodox Jewish community has in the community.
At the time, the district attorney denied Lesher's request, releasing no information, saying that a trial in New York was still a possibility, and the information was therefore too sensitive to release. Lesher sued, and the case ascended the state's courts, all the way to the Court of Appeals where it was argued Feb. 14.
Lesher's opponent, Hynes, argues that releasing information about the case would be inappropriate, because the identities of the victims, even if their names are redacted from the documents, could be inferred.
"The majority of the documents tend to identify the victims of sex offenses, and thus disclosure is prohibited by Civil Rights Law," Hynes argues in his brief to the Court of Appeals.
Hynes also says that while Mondrowitz remains in Israel, there is always the possibility that he will return to the United States, where he could be arrested and tried.
"Public Officers Law applies to all of the documents at issue," Hynes argues, "because that exemption permits an agency to withhold documents that, if disclosed, would interfere with an ongoing prosecution."
However, the 2010 decision by the Israeli courts has changed the dynamics of the case slightly.
The case is essentially being argued over the powers of law enforcement to withhold case documents.
Hynes argues, along with the sensitivity of victim information, that the documents can't be released while the case is still open.
However, with such a recent ruling from Israel saying that Mondrowitz will not be extradited, Lesher claims that the case can now be considered closed. He also believed that documents related to extradition would not in any way damage the case the district attorney has against Mondrowitz.
Lesher, to this day, has yet to acquire a single document related to the case.
An appellate court had ruled in favor of Hynes, but Lesher appealed.
"The Appellate Division's holding in effect creates an altogether new FOIL exemption that would allow law enforcement agencies to assert 'blanket' withholding privileges for virtually all documents in the possession," Lesher warned in his brief to the Court of Appeals.
The judges of the Court of Appeals will have to determine to what extent documents should or shouldn't be released. This depends on whether or not they believe the case is closed, and whether or not the identities of the victims can really be kept anonymous by redaction.
They can rule that all the documents be released, with redactions, or agree with the appellate court decision, and order none be disclosed.
Or, after four years of litigation, the court could send the case back to a lower court to determine which facts should be released and which shouldn't. Lesher believes it's too late to take such an action, however.
"The proper time for a document-by-document review was when we were originally before the trial court. At that time, the D.A.'s office never specified which documents it wanted to withhold or the reasons why," said Lesher.
He believes that this case could set a new precedent for the extent of government's powers to withhold documents under the state's FOIL Law.
"At a minimum, I hope the court will reject the sweeping standard for withholding the D.A. is trying to advance. I also hope the court will define the limits of withholding for privacy purposes, particularly the definition of a 'document'," Lesher said.