Jewish Daily Forward's FOIL Request for Name of Mohel Is Rejected

, New York Law Journal


The identity of a mohel who infected an infant with herpes during a ritualistic circumcision will apparently remain secret as a state judge has held that principles of open government "must yield to matters of public safety."

Supreme Court Justice Timothy Dufficy (See Profile) in Queens rejected a bid by The Jewish Daily Forward and journalist Paul Berger to learn the name of the mohel involved in the December 2012 Metzizah B'Peh (MBP). During the ritual, in which a mohel—a person who performs the Jewish rite of circumcision—orally draws away blood from the surgical wound, an infant was infected with herpes.

The ritual, which is common in some Orthodox communities, is highly controversial both within and outside the Jewish community.

Last year, the federal Centers for Disease Control and Prevention declared the procedure unsafe, and New York City now requires parental consent acknowledging the dangers of MBP before it is performed. Some Jewish groups and rabbis have complained that the city's consent rule infringes on the religious freedom provision of the First Amendment.

Dufficy found that the reporting requirements of the New York City Health Code would be undermined if the anonymity of the mohel was compromised. He also held that the newspaper's mission to raise public awareness of the issue could be achieved without subjecting such individuals "to vilification in the press, as well as embarrassment and shame in both their business and private life, in addition to possible sanctions for violations of the NYC Health Code if they infected others."

Berger v. New York City Department of Health and Mental Hygiene, 7618/13, is a Freedom of Information Law case brought by a nonprofit newspaper serving Jewish and Yiddish speaking communities.

In January, Berger filed a FOIL request with the city Department of Health and Mental Hygiene seeking the identity of the mohel involved in the 2012 incident. The city denied the request at the first instance and on appeal, and Berger and the newspaper responded with an Article 78 petition in Supreme Court.

Warren Haskel of Kirkland & Ellis, representing The Jewish Forward and Berger, argued that the identity of the mohel is a matter of public importance.
Over the years at least two infants have died after contracting herpes during an MBP and two others suffered brain damage.

The city countered that disclosure would constitute an unwarranted invasion of privacy, while eroding the strong public interest in encouraging individuals and organizations to report incidents of neonatal infections.

Dufficy agreed with the city.

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