Senate Bill S708

                                
 
BILL NUMBER: S708

SPONSOR: KAPLAN
 
TITLE OF BILL:

An act to amend the public officers law, in relation to exempting
certain statements relating to sexual abuse or misconduct from disclo-
sure

 
PURPOSE:

This bill explicitly exempts the statements of sexual abuse victims and
witnesses from disclosure under FOIL to protect victims' and witnesses'
privacy.

 
SUMMARY OF PROVISIONS:

Adds subsection to include statements made by a witness or victim relat-
ing to sexual abuse or misconduct as an exemption from disclosure under
FOIL.

              

 
JUSTIFICATION:

Victims of sexual abuse and misconduct frequently do not disclose abuse
because they fear among other things, embarrassment, rejection and
retaliation. Soon, the Court of Appeals will hear a case, Friedman V.
Rice, in which the petitioner seeks to force the public disclosure,
under FOIL, of statements of child sex abuse victims made to police and
prosecutors.

A convicted Level III Sex offender is seeking the statements made by his
child victims from the Nassau County District Attorney's Office under
the Freedom of Information Law (FOIL) and the court of appeals will hear
the case in 2017. While we are confident that these records have been
properly shielded from disclosure, the Legislature should amend FOIL to
explicitly exempt from disclosure records, which, if disclosed would
reveal any witness statement relating to sexual abuse or misconduct.

While defendants in criminal cases have a broad right to evidence
against them, FOIL dictates public access to government records and
statements relating to sexual abuse should be explicitly exempt from
such FOIL disclosure. Public disclosure of these sensitive records-to
the media, to sexual predators, to abusive parents, to cyberbullies
would not only harm victims, but offend the rights of the accused who
have not been charged or convicted.

If the legislature extends the statutes of limitations for bringing
sexual abuses cases, as has been proposed, this modification to FOIL
would be even more critical. Extended statues of limitations would
provide an opportunity for many victims to come forward and seek
justice, and statements to school personnel, social service providers,
police and prosecutors should be presumed to be confidential and there-
fore exempt from disclosure to the public and media under FOIL.

The Legislature's appreciation of the importance of protecting the iden-
tities of the victims of sexual abuse has been codified in the Section
50(b) of the Civil Rights Law, which provides:


The identity of any victim of a sex offense, as defined in article one
hundred thirty or section 255.25, 255.26, 255.27 of the penal law, or an
offense involving the alleged transmission of the human immunodeficiency
virus, shall be confidential. No report, paper, picture, photograph,
court file or other documents, in the custody or possession of any
public officer or employee, which identifies such a victim, shall be
made available for public inspection.

Nassau County has successfully argued before the Appellate Division that
this provision precludes them from disclosing the records in question in
their entirety, but one justice dissented, and the Court of Appeals will
hear this case imminently. The Legislature should act promptly to
protect the privacy of those alleging sexual abuse as well as those whom
unproven allegations are made.

If the Legislature takes no action and the petitioner prevails before
the Court of Appeals, statements made to public officers regarding child
sexual abuse may be construed to be public records subject to disclosure
under FOIL to anyone requesting them, regardless of their intent and the
harm such release may cause. While we believe this outcome to be unlike-
ly, the chilling impact of such a decision would be incalculable.

 
LEGISLATIVE HISTORY:

S. 2840/A. 2658 of 2019/20; Referred to Senate
Investigations and Government Operations Committee
S. 6420/A. 7679; Passed Senate

 
FISCAL IMPLICATIONS STATEWIDE/COUNTY:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.