High Court Rules on Controversial FOIL Case

By Adam Shanks (The Legislative Gazette)
April 16, 2012

The state Court of Appeals has made a new round of decisions in recent weeks, including cases affecting the power of the Freedom of Information Law in New York state and the ability of companies to automatically renew customer subscriptions.

In the case Lesher v. Hynes, appellant Michael Lesher argued he should have access, under the Freedom of Information Law, to district attorney's documents and communications relating to the arrest and extradition of an alleged child sex abuser.

The Court of Appeals upheld a decision by the appellate court which said, at the time of the original legal action, Brooklyn District Attorney Charles Hynes was right to withhold information; possibly setting a precedent for limiting the power FOIL gives journalists and the public.

However, the Appeals court decision did note that if Lesher was to file the FOIL request now, there should be no impediment, due to changed circumstances.

In 1985 Avrohom Mondrowitz, an Orthodox Jewish man from Brooklyn, was indicted on five counts of sodomy in the first degree, along with nine other crimes, before a jury in Brooklyn. However, Mondrowitz had already fled to Israel before an arrest warrant could be obtained. Attempts by then Kings County District Attorney Elizabeth Holtzman to extradite Mondrowitz were unsuccessful.

Kings County District Attorney Charles Hynes attempted to extradite Mondrowitz from Israel again in 2007. A legal battle ensued, resulting in a 2010 decision by the Israeli Supreme Court that Mondrowitz would not be turned over to New York authorities.

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 attempted to extradite Mondrowitz sooner than he did - Hynes had already been in office for several terms. Lesher's intuition is that Hynes didn't press for the extradition because of the strong influence the Orthodox Jewish community has in his district.

At the time, the district attorney denied Lesher's request, releasing no information, saying a trial in New York was still a possibility, and the information was therefore too sensitive to release. Lesher sued, and the case made its way to the state Court of Appeals.

Lesher's opponent, Hynes, argued that releasing information about the case would be inappropriate, because the identities of the victims could be inferred, even if their names were redacted from the documents. The release of this information would be a violation of state law while the case is still open, Hynes' attorney argued in front of the court earlier this year.

Lesher believes that as a result of the 2010 Israeli Supreme Court decision to protect Mondrowitz from extradition, the case can now be considered closed, and information released.

The Court of Appeals agreed the case was closed, so Lesher would be free to make another FOIL request. However, although their decision implies that until a trial is impossible, a public official is able to withhold all documents related to the case, even those that don't directly affect the outcome of the case, or jeopardize the state's case against the accused.