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Redaction of Information Which Could Possibly Endanger Witnesses in a Homicide Investigation Is Required

Over a dissent, the First Department determined that information which could endanger confidential witnesses in a homicide investigation should be redacted from documents released pursuant to a FOIL request:

We agree with the dissent’s observation that the public safety exemption of Public Officers Law § 87(2)(f) does not warrant a blanket exception for DD5s …that reveal the identity of individuals (see Gould v New York City Police Dept., 89 NY2d 267, 277 [1996]…). However, the dissent’s rationale for release of this information, i.e., that “they may provide further information that would benefit [petitioner’s] case” is at odds with both the public safety and privacy exemptions of Public Officers Law § 87.

The Gould Court recognized that unlimited disclosure of identifying information on the DD5s is not warranted. It stated that “[d]isclosure of such documents could potentially endanger the safety of witnesses, invade personal rights, and expose confidential information of nonroutine police procedures. The statutory exemptions contained in the Public Officers Law, however, strike a balance between the public’s right to open government and the inherent risks carried by disclosure of police files” (Gould, 89 NY2d at 278, citing Public Officers Law § 87[2][b], [e], [f]). * * *

…[I]n the context of a homicide investigation, “we do not find that there must be a specific showing by respondents that petitioner, who is presently incarcerated, has threatened or intimidated any of the witnesses in his criminal case . . . in order to warrant redaction of certain identifying information” …. . … “The agency in question need only demonstrate a possibility of endanger[ment]’ in order to invoke this exemption” … . In fact, “[e]ven in the absence of such a threat, certain information found in DD-5s could, by its inherent nature, give rise to the implication that its release, in unredacted form, could endanger the life and safety of witnesses or have a chilling effect on future witness cooperation” … . Matter of Exoneration Initiative v New York City Police Dept, 2014 NY Slip Op 00728, 1st Dept 2-6-14

 

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