BILL NUMBER: S645

SPONSOR: SKOUFIS
 
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:

Section 1: Amends Paragraph (e) of subdivision 2 of section 87 of the
public officers law, as amended by chapter 155 of the laws of 2022.
Includes additional protections for law enforcement records. It clari-
fies that records compiled for law enforcement purposes may be withheld
if disclosure would interfere with investigations, deprive someone of a
              

fair trial, reveal confidential sources or criminal investigative tech-
niques, or expose statements related to sexual abuse or misconduct. Any
agency considering withholding records must confirm with the investigat-
ing agency that disclosure would harm the investigation.

Section 2: Sets effective date

 
JUSTIFICATION:

Victims of sexual abuse and misconduct frequently do not disclose abuse
because they fear, among other things, embarrassment, rejection, and
retaliation. In 2017 the Court of Appeals heard a case, Friedman V.
Rice, in which the petitioner sought to force the public disclosure,
under FOIL, of statements of child sex abuse victims made to police and
prosecutors.

The Court of Appeals was set to hear a case involving a convicted Level
III sex offender who was requesting access to statements made by child
victims. The request has been submitted to the Nassau County District
Attorney's Office under the Freedom of Information Law (FOIL). While we
are confident that these records have been shielded adequately from
disclosure, the Legislature should amend FOIL to explicitly exempt from
disclosure records, which, if disclosed, would reveal any witness state-
ment relating to sexual abuse or misconduct.  While defendants in crimi-
nal 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, sexual predators,
abusive parents, or cyberbullies would not only harm victims but also
offend the rights of the accused, who have not been charged or
convicted.

If the legislature extends the statutes of limitations for bringing
sexual abuse cases, as has been proposed, this modification to FOIL
would be even more critical. Extended statutes of limitations would
allow many victims to come forward and seek justice. Statements to
school personnel, social service providers, police, and prosecutors
should be presumed confidential and, therefore, 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 Section 50(b)
of the Civil Rights Law, which provides:

The identity of any victim of a sex offense, as defined in Article 130
or section 255.25, 255.26, 255,27 of the penal law, or an offense
involving the alleged transmission of 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 identifying such a victim shall be available for public
inspection.

Before the Appellate Division, Nassau County has successfully argued
that this provision precludes them from disclosing the records in ques-
tion. Still, 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 for whom unprov-
en allegations are made.

 
PRIOR LEGISLATIVE HISTORY:

Senate

2017: S6420, Passed Senate

2018: S6420, Passed Senate

2019: S2840, Referred to Investigations and Government Operations

2020: S2840, Referred to Investigations and Government Operations

2021: S708, Referred to Investigations and Government Operations

2022: S708, Referred to Investigations and Government Operations

2023: N/A

2024: S8701, Advanced to Third Reading

Assembly

2017: A7679, Reported to Codes

2018: A7679, Referred to Codes

2019: A2658, Referred to Governmental Operations

2020: A2648, Referred to Governmental Operations

2021: A3673, Referred to Governmental Operations

2022: A3673, Referred to Governmental Operations

2023: A1758, Referred to Governmental Operations

2024: A1758, Referred to Governmental Operations

 
FISCAL IMPLICATIONS:

None to the state.

 
EFFECTIVE DATE:
This act shall take effect immediately.