NYPD Can Withhold Records from Non-Profit, Panel Rules

, New York Law Journal

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"Here, disclosure of the information concerning Diaz is not mandated by the observation that his testimony was potentially exculpatory," the majority wrote. "While his failure to identify Rosario in a line-up is arguably exculpatory, his testimony at trial which largely corroborated the accounts provided by the People's other two witnesses raises the 'possibility of endangerment,' satisfying respondent's burden with respect to the information pertaining to Diaz."

The unnamed passerby, similarly, could be endangered by the disclosure, the majority said.

"Further, the disclosure of the information regarding Passerby would also create a possibility that Passerby's life or safety could be endangered," it wrote. "While it is true that Passerby's statement might seem at odds with the account provided by the People's witnesses, this account is not dispositive."

Furthermore, the majority wrote, the requested disclosures would be an "unwarranted invasion of privacy" and could have a "chilling effect" on witnesses cooperating with the police in the future.

It therefore ordered the NYPD to produce some parts of the case file that it had withheld, but not the eyewitnesses' information.

The majority found that, in light of this partial reversal, the Exoneration Initiative had not substantially prevailed and thus was not entitled to fees.

Freedman, in her dissent, said she would have affirmed Moulton's decision completely.

She said that she found "no basis to find that disclosing the passerby's name, address, and telephone number as of 1996, and Jose Diaz's address and telephone number, could endanger them or violate their privacy."

"The majority acknowledges that the passerby's statement to the police did not corroborate 'the account provided by the People's witnesses,' and I am puzzled by the majority's reasoning that, merely because 'this account is not dispositive,' disclosing information about the passerby who contradicted that account would endanger him," she added.

Finally, she said, "any intrusion into individuals' privacy is outweighed by the possibility that Rosario is actually innocent and that evidence of actual innocence may be revealed."

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