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REQUEST FOR STATEMENTS MADE BY WITNESSES WHO DID NOT TESTIFY AT TRIAL (BECAUSE PETITIONER PLED GUILTY) SHOULD HAVE BEEN DENIED; NON-TESTIFYING WITNESS STATEMENTS ARE CONFIDENTIAL; REQUEST FOR GRAND JURY MINUTES SHOULD HAVE BEEN DENIED; ALTHOUGH THE PUBLIC INTEREST IS INVOLVED, PETITIONER DID NOT MAKE THE REQUISITE FACTUAL SHOWING OF A PARTICULARIZED NEED FOR DISCLOSURE.

The Second Department, over an extensive dissent, reversing Supreme Court, determined that petitioner’s request for disclosure of statements made by non-testifying witnesses and the grand jury minutes should not have been granted. In 1988 petitioner pled guilty to several sex offenses. Therefore, none of the witnesses who gave statements in connection the petitioner’s criminal case testified. The Second Department held the statements remained confidential. With respect to the grand jury minutes, the court noted that the public interest was involved, but was not enough to justify disclosure because petitioner did not make a factual showing of a particularized need for disclosure:

” [T]he statements of nontestifying witnesses are confidential and not disclosable under FOIL'” … . Thus, the documents sought by the petitioner, which contain statements of nontestifying witnesses, are not disclosable under FOIL.

Contrary to the petitioner’s contention, the fact that he pleaded guilty and forfeited his right to a trial does not warrant a different conclusion. Under this Court’s jurisprudence, the statements of nontestifying witnesses are confidential, and that “cloak of confidentiality” is removed “once the statements have been used in open court” … . The entry of the petitioner’s plea of guilty did not remove the “cloak of confidentiality” from the statements of the nontestifying witnesses. Thus, those statements remain confidential and are not disclosable under FOIL. * * *

[A] “… party seeking disclosure [of grand jury minutes] will not satisfy the compelling and particularized need threshold simply by asserting, or even showing, that a public interest is involved.” Rather, “[t]he party must, by a factual presentation, demonstrate why, and to what extent, the party requires the minutes of a particular grand jury proceeding to advance the actions or measures taken, or proposed (e.g., legal action, administrative inquiry or legislative investigation), to insure that the public interest has been, or will be, served'” … . …

Despite the public interest involved in this case, the petitioner’s submissions did not establish a compelling and particularized need for disclosure of the grand jury materials … . The petitioner failed to demonstrate, by factual presentation, why, and to what extent, the grand jury materials are necessary to insure that the public interest will be served. In particular, the petitioner failed to sufficiently demonstrate how examination of the grand jury minutes and records will support his claim of actual innocence. Matter of Friedman v Rice, 2015 NY Slip Op 09103, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

FREEDOM OF INFORMATION LAW [FOIL] (STATEMENTS OF NON-TESTIFYING WITNESSES ARE CONFIDENTIAL)/FREEDOM OF INFORMATION LAW [FOIL] (GRAND JURY MINUTES, NO FACTUAL SHOWING OF PARTICULARIZED NEED FOR DISCLOSURE)/GRAND JURY MINUTES (FOIL REQUEST, NO FACTUAL SHOWING OF A PARTICULARIZED NEED FOR DISCLOSURE)

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