STATEMENT IN SUPPORT OF MOTION FOR LEAVE TO APPEAL
This statement is submitted in support of the instant motion of PetitionerRespondent for leave to appeal to this Court from the Memorandum and Order
of the Appellate Division, Second Department, dated January 11, 2011,
reversing a Decision and Order of Supreme Court, Kings County which had
granted in significant part Petitioner’s application under CPLR Article 78
seeking a release of documents from Respondents, officers of the District
Attorney for Kings County, under the Freedom of Information Law.
The FOIL request at issue was made in October 2007. (A 8.)1 Supreme
Court’s order (dated November 23, 2009 and entered December 1, 2009),
directed the production to Petitioner of documents relating to the attempted
extradition from Israel of Rabbi Avrohom Mondrowitz (A 2-7), a fugitive from
justice who was indicted in Brooklyn on multiple counts of first-degree sodomy
and first-degree child sexual abuse for his alleged abuse of children (9 to 15
years old) during the 1980s. (A 9.)
Some additional background is in order. Rabbi Mondrowitz dodged arrest
in Brooklyn and fled to Israel at the end of 1984. Ever since then, influential
people in the Orthodox Jewish community have reportedly colluded with
1
References marked “A” are to the Appendix included in Appellants’ Brief and Appendix
filed with the Appellate Division, Second Department in this matter, a copy of which
accompanies this motion.
1
government officials to cover up their role in allowing Mondrowitz to remain
unpunished (as noted by the trial court in its decision below – A 3-4).
Petitioner’s research and activism revealed that the Kings County District
Attorney (Respondent herein) abandoned efforts to bring Mondrowitz to justice
in September 1993, while Mondrowitz remained in Israel. However, due in large
parts to Petitioner’s efforts, Respondent reversed his position and agreed to
resume efforts to extradite Mondrowitz in October 2007. (A 10.) Mondrowitz
was arrested in Israel in November 2007. The Israeli government then ordered
his extradition to Brooklyn, which order was affirmed by a District Court in
Jerusalem.2 (These facts are generally repeated in the trial court’s decision. – A
3.)
As shown below, the Appellate Division, Second Department, in
reversing the trial court and denying disclosure, erred as a matter of law in
several serious ways. The appellate court ignored and misapplied relevant
precedent – including holdings of this Court – and dramatically altered the law
governing the disclosure of documents by law enforcement officers when those
documents are not related to a criminal prosecution. The appellate court created,
in effect, a new sort of FOIL exemption with no basis in law, allowing the
2
After proceedings were concluded in this matter in the trial court, Israel’s Supreme Court
reversed the District Court, dismissing the order to extradite Mondrowitz. He was accordingly
released from prison and remains at large in Jerusalem, Israel. (See Appellants’ Brief, p. 13,
footnote 2.)
2
exactly the sort of “blanket” withholding forbidden by all existing precedent; it
also rewrote Civil Rights Law § 50-b – and again, defied the ruling of this Court
– by allowing an agency to withhold documents that do not tend to identify sex
abuse victims without so much as stating a reason. Finally, the appellate court
misunderstood or misrepresented the trial court’s decision and the record below,
leading to a result that, applied to other cases, would result in an anti-disclosure
reading of the relevant FOIL provisions directly contrary to clearly stated public
policy.
The legal questions raised by this case are of great relevance to many
other cases. New York’s Freedom of Information Law is a statute of
unquestioned importance. If the Appellate Division’s ruling is allowed to stand,
public access to any and all documents in the custody of a law enforcement
agency, even when those documents do not pertain to a criminal prosecution,
will be thwarted, effectively rewriting FOIL. In addition, the narrow exemption
from disclosure provided by Civil Rights Law § 50-b will be expanded so
dramatically that all documents involved in the prosecution of a sex crime will
be off-limits to the public, even those that do not tend to identify a victim and
even though the withholding agency has failed to give a single reason for
withholding them.
3
Besides all this, the challenged ruling of the Appellate Division, Second
Department is directly at loggerheads with prior holdings of this Court on the
critical question of public access to government records. This Court has clearly
ruled that all FOIL exemptions must be narrowly interpreted; the Appellate
Division’s ruling vastly expands them without even acknowledging the novelty
of its holding. This Court has specifically held that no government agency may
issue a “blanket denial” of documents under Civil Rights Law § 50-b, but must
make a “particularized showing” why “each requested document” will tend to
identify a victim of sex abuse; the Appellate Division sanctions precisely that
“blanket denial” to justify withholding every single document held in connection
with a sex abuse case – even those having to do only with the diplomatic issues
of extradition – even when the withholding entity has not provided a
“particularized showing” for even one of those documents.
This radical rewriting of FOIL, departure from existing precedent and
direct violation of the directives of this Court all require this Court’s
intervention.
QUESTIONS PRESENTED FOR REVIEW
1)
Whether the Appellate Division, Second Department wrongly
established a new FOIL exemption allowing the withholding of all
documents by a law enforcement agency, even those unrelated to
4
any criminal prosecution, without any explanation by the agency.
Petitioner’s answer is yes.
2)
Whether the Appellate Division, Second Department wrongly
permitted the withholding of FOIL documents under Civil Rights
Law § 50-b without explanation by the agency, even when such
documents do not tend to identify a sex abuse victim. Petitioner’s
answer is yes.
3)
Whether
the
Appellate
Division,
Second
Department
misrepresented or misunderstood the record before the trial court in
order to reach a decision on appeal that is directly contrary to
existing precedent. Petitioner’s answer is yes.
4)
Whether the challenged ruling of the Appellate Division, Second
Department deviates from all existing authority, including holdings
of this Court. Petitioner’s answer is yes.
PROCEDURAL HISTORY
A final judgment and order in this custody/visitation matter was rendered
by Supreme Court, Kings County dated November 23, 2009, ordering the
release of certain documents requested by Petitioner under the Freedom of
Information Law (“FOIL”), which release had been refused by Respondents.
Respondents appealed. By Decision and Order dated January 11, 2011, the
5
Appellate Division, Second Department reversed. This order has not been served
on Petitioner with notice of entry, but Petitioner is aware of the ruling and
deems it prudent, under the circumstances, not to delay the filing of this motion.
The instant motion is being served (and filed) within thirty (30) days of the date
stated in the challenged ruling.
JURISDICTION
This Court has jurisdiction over the instant matter pursuant to CPLR §
5602(a)(1)(i), because this matter, Petitioner’s Article 78 petition for release of
documents under the Freedom of Information Law (“FOIL”), originated in
Supreme Court, Kings County, and the Appellate Division, Second
Department’s reversal of Supreme Court’s ruling in Petitioner’s favor finally
determines the matter, and is not appealable as of right.
ARGUMENT FOR REVIEW
POINT I
THE APPELLATE DIVISION CREATED A NEW FOIL EXEMPTION
WITH NO BASIS IN LAW
The Appellate Division’s ruling creates, in effect, an entirely new FOIL
exemption with no basis in law. In fact, the decision contradicts existing
precedent, including the explicit holding of this Court that FOIL exemptions
must be narrowly construed.
6
As briefly shown above, the documents in question here are held by the
District Attorney’s office of Kings County and pertain to long-running attempts
to extradite Rabbi Avrohom Mondrowitz, who fled to Israel to escape arrest in
December 1984, and who remains there to this day. The FOIL request at issue
was made in 2007 (hereafter, the “FOIL Request”) and concerns documents
from September 1993 to the present. In other words, the FOIL Request affects
only documents created at least nine years after Mondrowitz fled the United
States – long after any police work or criminal indictment preparation ceased.
The trial court explicitly ordered the release only of correspondence and other
documents relating to the extradition of Mondrowritz – not his prosecution.
The Appellate Division, reversing, claimed that “appellants established
that disclosure of the materials sought would interfere with law enforcement
investigations or judicial proceedings,” citing Public Officers Law § 87(2)(e)(i).
In fact, Appellants established no such thing. Rather, the Appellate Division has,
in effect, created an altogether new and broad FOIL exemption that allows the
withholding of all documents created or maintained by law enforcement officers
as long as there may be a criminal prosecution in a given case, even though the
documents in question admittedly do not pertain to the prosecution. That is
something radically different, and it finds no support in Public Officers Law §
87(2)(e)(i).
7
This subsection exempts only the disclosure of documents that would
“interfere with law enforcement investigations or judicial proceedings.” First of
all, Appellants never even attempted to prove that any documents pertaining to a
criminal prosecution of Mondrowitz have been added to the District Attorney’s
case file after September 1993 (the opening date for the FOIL Request). As
noted above, Mondrowitz fled the country in 1984, and Appellants’ office
formally stopped all progress on the case in September 1993. Appellants never
even alleged below that any documents added to the case file since September
1993 involve police work, witness statements, prosecutors’ notes, etc. Quite the
opposite: Appellants actually admitted that the documents responsive to the
FOIL Request are not part of the prosecution file in the case, but instead consist
of “correspondence” that “relate to Mr. Mondrowitz’s extradition from Israel.”
(Appellants’ Brief,3 p. 12.) These documents clearly are subject to disclosure
under FOIL.
Moreover, Appellants’ own actions, conceded throughout this proceeding,
clearly disprove the Appellate Division’s claim that disclosure of these
documents would interfere with any prosecution of Mondrowitz. First, material
that Appellants compiled for law enforcement purposes, including victim
statements, police reports, etc., has already been provided to Petitioner. In fact,
3
Again, a copy of the Appellants’ Brief and Appendix filed below, as well as a copy of
Petitioner-Respondent’s Brief and Appendix, have been filed along with this motion.
8
Appellants admitted as much. (A 12.)4 (Petitioner’s current request simply seeks
to update his information since September 1993.) Clearly, if this information
were subject to a blanket exemption, none of these documents would have been
released in the first place.
Second, at least one of the documents covered in the FOIL Request has
already been publicly released. (A 15.) Since it has already been made public, it
is not subject to any exemption under FOIL. See Moore v. Santucci, 151 A.D.2d
677, 679 (2nd Dept., 1989). Moreover, its public release clearly contradicts
Appellants’ assertion of a blanket exemption regarding these documents.
Most important, the Appellate Division’s radically broad reading of
Public Officers Law § 87(2)(e)(i) cannot be supported by the language of the
statute. All FOIL exemptions must be narrowly construed, as this Court has
stressed: “To ensure maximum access to government records, the ‘exemptions
are to be narrowly construed, with the burden resting on the agency to
demonstrate that the requested material indeed qualifies for exemption.’ . . .
‘Only where the material requested falls squarely within the ambit of one of
these statutory exemptions may disclosure be withheld.’” Gould v. New York
City Police Department, 89 N.Y.2d 267, 275 (1996), quoting Matter of Hanig v.
4
They admit it again in their brief. (Appellants’ Brief, p. 13.)
9
State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109 and Matter of
Fink v. Lefkowitz, 47 N.Y.2d 567, 571.
Under this severe standard, it is clear that § 87(2)(e)(i) cannot justify the
blanket withholding of extradition-related document sanctioned by the Appellate
Division. Again, this subsection exempts only the disclosure of documents that
would “interfere with law enforcement investigations or judicial proceedings.”
The Appellate Division’s ruling supports a blanket refusal to disclose any
documents, even those admittedly unrelated to “law enforcement investigations
or judicial proceedings” – in this case, specifically, documents relating to
extradition proceedings – simply because there may be a prosecution. That is a
completely new FOIL exemption, and it is flatly contrary to law. Leave to
appeal must be granted to correct this serious legal error.
POINT II
THE APPELLATE DIVISION WRONGLY PERMITTED THE
WITHHOLDING OF DOCUMENTS UNRELATED TO A CRIMINAL
PROSECUTION WITHOUT REQUIRING ANY EXPLANATION FOR
THE NEED TO WITHHOLD SUCH DOCUMENTS
The Appellate Division’s ruling violates explicit precedents that have
applied the relevant subsection, § 87(2)(e)(i). The new ruling allows Appellants
to withhold all documents in their possession that pertain to Mondrowitz, under
a single blanket denial, simply because there is – or may be, if Mondrowitz is
ever extradited – a criminal prosecution. This ruling violates existing authority.
10
Pittari v. Pirro, 179 Misc. 2d 241, 683 N.Y.S.2d 700 (Sup. Ct.,
Westchester Co., 1998)5 – a case, affirmed by the Appellate Division, that is
prominently cited in the Appellate Division’s decision herein – actually proves
the exact opposite of what the Appellate Division has held in the case at bar. In
Pittari v. Piro, the documents sought by the petitioner were all directly related to
the criminal prosecution: “all complaint reports; all reports of interviews of
witnesses; all police activity logs; and all records . . . obtained by the People in
connection with the investigation of the homicide . . .” The court specifically
noted that all these documents were “compiled for law enforcement purposes”
and that “production of the requested records during the pendency of the trial of
the Indictment would interfere with the judicial proceedings . . .” That was the
factual basis on which the court refused to order disclosure, and on which the
Appellate Division affirmed.
The facts of the case at bar are radically different, as implicitly conceded
by Appellants below, who nowhere in their brief even alleged that the
documents responsive to the FOIL Request would interfere with the prosecutors’
ability to try Mondrowitz in the event he is finally extradited from Israel.6 The
trial court ordered the disclosure of documents related to the D.A.’s office’s
5
This case was affirmed by the Appellate Division, Second Department, at 258 A.D.2d 202
(2nd Dept., 1999), but the facts are more fully spelled out in the lower court’s decision.
6
As noted above, that is now a virtual impossibility, since Israel’s highest court has dismissed
the extradition order and Israeli prosecutors have declined to make any further attempt to
extradite Mondrowitz. (See Appellants’ Brief, p. 13, footnote 2.)
11
decision to renew its request to seek Mondrowitz’s extradition from Israel and to
its actual pursuit of that request. (A 6-7; see A 23.) Nothing in Pittari v. Pirro
supports Appellants’ refusal to disclose such documents. The same is true of the
only other relevant case cited by the Appellate Division, Legal Aid Society v.
New York City Police Dept., 274 A.D.2d 207 (1st Dept., 2000.) These cases say
that when documents “are part of a pending criminal prosecution” (Appellants’
Brief, p. 11), that fact alone is sufficient justification for withholding the
documents. Appellants, however, sought – and for the moment have obtained –
a radically broader holding: that as long as there is, or may be, a criminal
prosecution, all documents may automatically be withheld, even those unrelated
to the prosecution, without any showing that their disclosure would interfere
with prosecutors’ handling of the case. No authority whatsoever supports that
conclusion.
The only justification Appellants have ever offered the courts for such a
position is that extradition-related records – which were not prepared for use in
the criminal investigation or trial of Avrohom Mondrowitz – are “related to Mr.
Mondrowitz’s prosecution, because they were prepared in an effort to return him
to King County so that a prosecution could actually occur.” (Appellants’ Brief,
p. 13 [emphasis added].) Appellants’ own wording exposes the absurdity of their
reasoning. Their language makes it clear that the documents in question were
12
not prepared for or as part of a prosecution, but rather “so that a prosecution
could actually occur.” Yet precisely this drastic rewriting of the case law
applying this subsection of FOIL is endorsed in the Appellate Division’s ruling.
Since it is clear, by Appellants’ own concession, that the documents
ordered disclosed by Supreme Court do not pertain to a prosecution, no blanket
exemption is available, and the Appellate Division is seriously in error in
claiming that “the assertion that disclosure would interfere with an ongoing law
enforcement investigation was a sufficiently particularized justification for the
denial of access to those records.” Even assuming that there really is an
“ongoing law enforcement investigation,” the precedents relied on by the
Appellate Division clearly allow this blanket assertion only for documents
pertaining to that prosecution. Since the documents ordered disclosed by the trial
court are not related to the criminal investigation or prosecution, no blanket
exemption was available under the law – yet that is what the Appellate
Division’s ruling approves. This Court must intervene to prevent the radical and
improper expansion of this FOIL exemption.
13
POINT III
THE APPELLATE DIVISION WRONGLY PERMITTED THE
WITHHOLDING OF DOCUMENTS THAT DO NOT IDENTIFY A SEX
ABUSE VICTIM UNDER CIVIL RIGHTS LAW § 50-b
The only other grounds given by the Appellate Division for allowing the
withholding of extradition-related documents in this matter is the provision of
Civil Rights Law § 50-b that permits the withholding of documents tending to
identify the victims of sexual abuse. The Appellate Division’s ruling both
misreads the record of the case and, just as fundamentally, contradicts the
explicit authority of this Court.
As the trial court recognized, Appellants cannot avail themselves of the
provisions of Civil Rights Law § 50-b, because in order to withhold any
documents under that statute, Appellants are required to specify how each
document they seek to withhold would identify the victim of a sex offense – and
Appellants have never made any such specific, document-by-document
showing. As this Court stated in Fappiano v. New York City Police Department,
95 N.Y.2d 738 (2001), officials seeking to withhold documents under § 50-b
must
meet their burden of showing that the statutory privilege of Civil Rights
Law §50-b applies to all of the records that petitioners seek (Matter of
Gould v. New York City Police Dept., 89 N.Y. 2d 808, supra) . . . [and
must show] that each requested document contained identifying
information. While Civil Rights Law §50-c mandates caution by
imposing civil liability upon governmental entities that disclose the
14
identity of a sex crime victim in violation of section 50-b, that fact does
not justify a blanket denial of a request for any documents relating to a
sex crime. . . . [Even in] those cases where there is as legitimate dispute as
to whether the information contained in any given document tends to
identify the victim, the [withholding officials] still bear the burden of
making a particularized showing as to why it should not be disclosed
(supra, 748).
[Emphasis added.] In other words, there is no “blanket denial” to a FOIL request
under Civil Rights Law § 50-b; rather, government agencies must only use
“caution” in disclosing documents that might identify sex abuse victims; and if
they wish to withhold entire documents, they must “bear the burden of making a
particularized showing,” in the case of “each” such document, “as to why it
should not be disclosed.” Otherwise they must disclose all documents, though of
course redaction is appropriate where necessary. See also Doyen v. McMahon,
306 A.D.2d 798 (3rd Dept., 2003) (agency must prove that all withheld
documents tend to identify the victim of a sex crime, and cannot rely on a
blanket exemption).
In this case, the record proves beyond dispute that Appellants have never
– not in the trial court below, and not on appeal – even attempted to bear the
burden of making a “particularized” showing, in the case of each document they
seek to withhold, that the document, if released, would tend to identify a sex
abuse victim. Indeed, Appellants themselves admitted that many of the
extradition-related documents would in no way identify a sex abuse victim;
15
Appellants claimed only – and in the most general terms – that “most” would.
(Appellants’ Brief, p. 14.) Even with respect to the documents that Appellants
claimed did contain victims’ identifying information – and, even by Appellants’
admission, this did not account for a great many of the documents ordered
released by the trial court – Appellants gave no document-by-document
explanation for withholding any of them, as explicitly required by the ruling of
this Court (as shown above.)
Accordingly, it was reversible error for the Appellate Division to apply
Civil Rights Law § 50-b to the facts of this case; indeed, its holding violated the
authority of this Court. Accordingly, leave to appeal must be granted so that this
legal error may be corrected.
Even if it is true that some documents responsive to the FOIL Request
may refer to sex abuse victims – and as yet the District Attorney has never made
any particularized showing, so this is impossible to say – it cannot be assumed
that all such documents must be withheld in their entirety. The Appellate
Division cites Karlin v. McMahon, 96 N.Y.2d 842 (2001), as proof that
Appellants may withhold all extradition-related documents that in any way refer
to the identity of sex abuse victims. But that is not the holding of that case, nor
of any other. Rather, the case law says only that where a specific document
identifies the victim of a sex offense, the specific part containing the identifying
16
information may be withheld; no case permits the automatic withholding of an
entire document because somewhere, connected with it, there may be
information tending to identify a sex abuse victim. For instance, it is quite
possible that an extradition-related document might contain, as an attachment, a
copy of the unredacted indictment. The Appellate Division’s ruling appears to
mean that in such a case the Appellants could withhold not only the unredacted
attachment but everything else as well, even though nothing in the primary
document (or any other attachments) even remotely identifies a sex abuse
victim. That is not the law.7 Again, leave to appeal is required to correct the
Appellate Division’s serious error of law.
POINT IV
THE APPELLATE DIVISION MISREPRESENTED OR
MISUNDERSTOOD THE RULING IT REVERSED
The Appellate Division believed – and stated – that Petitioner demanded,
in the trial court, a particularized showing of the reason each document that
would interfere with a criminal investigation or judicial proceeding should be
withheld, and that the trial court agreed with this. This is far from accurate.
7
It is instructive to note that when Appellants themselves responded to Petitioner’s earlier
FOIL request, they released the text of the indictment, witness statements, and police reports –
and simply redacted from those documents the identifying information of any victims. This
mirrors the approach of the trial court in this case.
17
As shown above, the trial court ordered the disclosure of extraditionrelated documents because Public Officers Law § 87(2)(e)(i) did not apply to
such documents – that is all. Of course, Appellants were free to offer a
particularized showing in support of withholding specific documents if they
chose – but they did not. The trial court never suggested that a particularized
showing is necessary to justify withholding of documents relating to a criminal
investigation or prosecution. It simply never ordered the disclosure of any such
documents.
The Appellate Division is equally in error in stating that Appellants
demonstrated that the disclosure of extradition-related documents would
interfere with a criminal prosecution. As shown above, they never made such a
showing; indeed, they never even made such a claim. Their objection to
disclosure was simply that these documents were tangentially related to a
prosecution, since extradition was a way of bringing about a criminal
prosecution. That is a very different argument from the one imputed to them by
the appellate court, an argument (as shown above) supported by no authority
whatsoever.
Finally, the Appellate Division is in error in stating that the extraditionrelated documents the trial court ordered released “would identify the victim of
sex offense.” As shown above, Appellants themselves admitted that many of the
18
documents in question could not possibly identify a sex abuse victim. And as for
any remaining documents, the Appellants never made the specific factual
showing required for withholding by the explicit holding of this Court. The
Appellate Division is simply in error in believing, and stating, that such a
showing was made. In fact, it was not made with respect to any of the
documents in question – and even Appellants admitted that it could never be
made with respect to many of them.
The Appellate Division’s errors are very serious, because they lead it to a
result that, as shown above, is contrary to law. These errors also amount to a
rewriting of the relevant facts established and stated by the trial court, which is
itself a serious legal error on the part of an appellate tribunal. “[T]he [trial]
court’s fact-finding will not be disturbed unless its conclusions could not have
been reached under any fair interpretation of the evidence. Chase Manhattan
Bank, N.A. v. Each Individual Underwriter Bound to Lloyd’s Policy No.
790/004A89005, 287 A.D.2d 303, 731 N.Y.S.2d 150, 151 (1st Dept., 2001),
citing Thoreson v. Penthouse Intl., Ltd., 80 N.Y.2d 490, 591 N.Y.S.2d 978, 606
N.E.2d 1369 (1992). The Appellate Division committed reversible error in
disturbing the trial court’s findings – doubly so because its errors prompted it to
misapply FOIL and to withhold documents that the law, backed by strong public
19
policy, required to be disclosed. This Court should intervene to correct those
errors.
POINT V
THE APPELLATE DIVISION’S RULING DRASTICALLY REDUCES
PUBLIC RIGHTS UNDER FOIL AND DEVIATES FROM WELLESTABLISHED CASE LAW, INCLUDING HOLDINGS OF THE
COURT OF APPEALS
As shown above, the ruling of the Appellate Division in this matter
radically rewrites the relevant provisions of FOIL and violates explicit
precedent, including holdings of this Court. It also works to the detriment of the
public, which has the right to know the truth about the handling of this tragic
and notorious case.
As shown above, the Mondrowitz case is not just any criminal matter.
Mondrowitz was charged with heinous crimes against children. Yet he was
allowed to remain undisturbed in Israel for decades, while the Appellants in this
matter washed their hands of his prosecution and of all efforts to bring him to
justice. Under pressure, they changed their tack and then publicly took credit for
a policy they had done their level best to resist. Now they are attempting to
conceal, or to falsify, the record of their actual conduct. In other words, their
goal – endorsed, unfortunately, by the flatly illegal ruling of the Appellate
Division below – has been to frustrate the very purpose of New Yorks’ Freedom
of Information Law.
20
As the Court is well aware, FOIL mandates liberal disclosure of requested
documents to the public – and the deliberate frustration of the purpose of that
law is a serious matter. That is what is at issue in this case. As shown above,
Appellants have loudly told the public their own, self-serving version of the
Brooklyn D.A.’s role in the attempt to extradite Mondrowitz. Contrary to the
Appellate Division’s erroneous reading of the record, Appellants clearly are not
afraid of any harm to the public if the case is openly discussed. The only thing
they resist is the disclosure of the documentary truth.
These issues relate to the very heart of the Freedom of Information Law.
Public officials, by virtue of their office, have the power (though not the right) to
deceive the public they represent, to claim they are doing things they are not, to
deny they are doing things that they are. FOIL exists precisely to redress that
danger. Yet the ruling below subverts that goal for no valid legal reason.
If the District Attorney has been telling the truth about his role in the
attempted Mondrowitz extradition, he has nothing to hide; if he has not been
telling the truth, he has no right to hide. If the Appellate Division’s ruling stands
in this case, the purposes for which FOIL was enacted – central to the proper
functioning of a democratic government – will be undermined.
21
CONCLUSION
For all the reasons stated above, Petitioner respectfully prays this Court to
grant leave to appeal, in order to seek to reverse the Appellate Division’s ruling
below – a ruling that, as shown above, radically alters FOIL, violates the rulings
of this Court (and other binding precedent), and undermines the public policy of
liberal disclosure that is the essence of FOIL.
Dated:
Passaic, New Jersey
February 7, 2011
___________________________
MICHAEL LESHER
Petitioner-Respondent pro se
22
AFFIDAVIT OF SERVICE
STATE OF NEW JERSEY
COUNTY OF PASSAIC
)
) Ss.:
)
The undersigned, MICHELLE LESHER, being duly sworn, does hereby
depose and state as follows:
I am over eighteen (18) years of age and am not a party to this matter. On
the 7 day of February, 2011, I caused to be served two (2) copies of the
attached Notice of Motion for Leave To Appeal Brief, and two (2) copies of the
attached Statement in Support thereof, with all attachments thereto, upon all
parties hereto at the address designated by said attorneys for that purpose, by
mailing same, enclosed in a postpaid, properly addressed wrapper, by
guaranteed overnight delivery (Federal Express), to the following:
th
LEONARD JOBLOVE
JODI L. MANDEL
MORGAN J. DENNEHY
Assistant District Attorneys of Counsel
Office of the District Attorney, County of Kings, New York
(for Respondents-Appellants)
Renaissance Plaza
350 Jay Street
Brooklyn, NY 11201-2908
[Signed:]
__________________________
MICHELLE LESHER
SUBSCRIBED AND SWORN TO before me this 7th day of February, 2011.
____________________________
Notary Public
23