Hella Winston (The Jewish Week)
April 10, 2012
A decision by New York State's highest court regarding the decision not to release documents by the Brooklyn District Attorney is being criticized as "troublesome" by some experts in Freedom of Information Law (FOIL).
On April 3, the New York Court of Appeals upheld a lower court's decision that the Brooklyn DA did not have to release any documents relating to the attempted extradition of alleged serial child molester Avrohom Mondrowitz, who fled to Israel in 1984 and was indicted in absentia on multiple counts of sexually abusing boys in Brooklyn. Michael Lesher, an attorney and author, had sought the documents under FOIL, because he believes they could shed light on the actions of various United States government agencies (as well as the Israeli government) in this matter, and how and why Mondrowitz escaped justice.
The DA had denied Lesher's request on the grounds that the documents — even those pertaining to Mondrowitz's attempted extradition — were part of an ongoing criminal investigation and thus exempt from disclosure under FOIL. Lesher challenged this claim before the court, arguing that extradition proceedings are distinct from any potential criminal prosecution. He also argued that, given the Israeli Supreme Court's 2010 ruling that Mondrowitz could not be extradited to the U.S., the criminal case could no longer be considered "ongoing."
While the Court of Appeals could have ordered that the DA turn over the files to Lesher, it instead ruled only that Lesher could re-submit his FOIL request, noting that "if he is correct in his assessment of the decision's effect — a matter for the FOIL records access officer to consider in the first instance — there is, practically speaking, no longer any pending or potential law enforcement investigation or judicial proceeding with which disclosure might interfere."
The court, however, did not order the DA to comply with a new request.
DA spokesman Jerry Schmetterer hailed the Court of Appeals' decision, saying that Lesher's FOIL suit was an attempt to "force" the DA to identify victims of sex abuse. However, Lesher's legal briefs do not include such a request and, when asked at oral argument about whether he was seeking information pertaining to the identity of the victims, Lesher responded that he "has no interest" in that information and that it "should be redacted out" of any documents he ultimately receives.
The crux of the case, experts suggest, concerns the ability of a government agency to withhold documents from the public without giving specific reasons why particular documents, if released, would jeopardize a legitimate concern.
"The element that I find troublesome," said Robert Freeman, the executive director of the New York State Department of State Committee on Open Government, "involves the ability of a law enforcement agency to engage in what is characterized as the generic denial of access . . . The government has the burden of proof [under FOIL] and that's what I dislike about the generic exception...[it] is inconsistent with the language of the law."
Lesher told the Jewish Week that he believes this decision will fuel what he called the DA's "stonewalling" on Mondrowitz and sets a disturbing precedent in other Orthodox sex abuse cases, in which the DA has been reluctant to share information with the public, such as the names of those charged by his office with sex crimes against children and the terms of plea deals his office has made with any of these unnamed defendants.
"Sooner or later, we are going to know why this indicted fugitive [Mondrowitz] wasn't brought to justice when he should have been," Lesher said.
"[But] one of the main things this decision means is that we are not going to get [information about the Mondrowitz extradition] for a long time, and it had to be clear to the court when it handed down its decision that that would be the case."