Prosecutors Have the Right to Keep Some Secrets
Post 5093
Application of New York's Freedom of Information Law (FOIL)
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James M. Haddad sought to compel Alvin L Bragg (Bragg) to produce certain material seized pursuant to a search warrant executed in connection with a now-completed criminal matter.
In James M. Haddad v. Alvin L Bragg, in his official capacity as District Attorney of the County of New York, 2025 NY Slip Op 31779(U), Index No. 158493/2023, Supreme Court, New York County (May 15, 2025) the court resolved the dispute.
FACTUAL BACKGROUND
OneTeam Restoration, Inc., its owner and president, Mario Rojas, Jr., and certified public accountant Steven Lyon were charged with three counts of Insurance Fraud in the First Degree and Falsifying Business Records in the First Degree based on allegations that Lyon, Rojas, and OneTeam engaged in a scheme to defraud the New York State Insurance Fund.
On April 26, 2023, petitioner submitted a Freedom of Information Law (FOIL) request to Bragg, the New York County District Attorney's Office. The FOIL sought the original rap sheets, warrants and corporate summons, production log and a thumb drive containing the discovery materials. The "discovery materials" on the thumb drive were, at least in part, thousands of pages of these defendants' business and financial records seized pursuant to a search warrant.
Bragg's Records Access Officer ("RAO" ) Corey S. Shoock denied petitioner's request on the grounds that disclosure would "interfere with the criminal judicial process, as well as with any further investigation and future judicial proceedings that might be necessary." Petitioner appealed the denial of his FOIL request.
Shortly thereafter, Rojas and OneTeam pled guilty to one count each of First Degree Falsifying Business Records and were sentenced that day.
Because the third defendant, Steven Lyon, remained open the appeal affirmed the RAO's determination and denial on pending judicial proceeding grounds and incorporate by reference his reasoning and cited authority.
In a post-remand decision on June 16, 2023, RAO Shoock wrote: “[P]ursuant to that portion of the AO's decision granting your appeal, you will be provided access to the following thirty-three (33) pages of material ... [but] [i]nsofar as criminal charges remain pending against defendant Steven Lyon, Omnibus Motion papers relating to defendant Lyon, discovery produced in the criminal prosecution against defendant Lyon, together with email correspondence between opposing counsel and with the Court, is exempt from production on the grounds that disclosure of such records would interfere with three pending prosecutions conducted by this Office against this defendant ...” [emphasis added]).
DISCUSSION
FOIL imposes a broad duty on government to make its records available to the public and all government records are thus presumptively open for public inspection and copying unless they fall within an enumerated statutory exemption contained in Public Officers Law § 87(2). The burden rests on the agency to establish that requested material qualifies for any of the exemptions, which must be narrowly construed.
Bragg met the burden by establishing that the requested records fell "squarely" within an exemption to disclosure. The statute exempts from disclosure records or portions thereof that are compiled for law enforcement purposes and which, if disclosed, would interfere with law enforcement investigations or judicial proceedings.
The petition was denied and this special proceeding dismissed.
ZALMA OPINION
FOIL limits the freedom of information available to criminal litigants and the public if it has an effect on the prosecution to disclose that information. Even after some defendants pleaded guilty to insurance fraud, others did not, so the FOIL request stayed refused. Regardless of the need for information to be freely available from prosecutors like Bragg, that freedom is not unlimited and the prosecutor may keep the evidence private for the purposes of trial.
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Read the full article at https://www.linkedin.com/pulse/passover-americans-barry-zalma-esq-cfe-5vgkc.
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For more than 3,000 years Jewish fathers have told the story of the Exodus of the enslaved Jews from Egypt. Telling the story has been required of all Jewish fathers. Americans, who have lived in North America for more than 300 years have become Americans and many have lostthe ability to read, write and understand the Hebrew language in which the story of Passover was first told in the Torah.
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