Brooklyn DA Charles Hynes original claim that the records sought by attorney Michael Lesher should be withheld because release would endanger prosecution was upheld. But the court noted that the extradition request has since been refused by Israel and the case is effectively closed. Therefore Lesher can file a new FOIL request to be judged again by the FOIL officer. But barring any credible evidence that Avrohom Mondrowitz can be brought back to Brooklyn for trial – and the court says it does not see any such evidence – the FOIL officer should honor Lesher's request. In other words, the DA "won" but he really lost, and Lesher "lost," but he really won.
Leagle has the entire court decision. Here are the last few paragraphs:
…The Appellate Division in Pittari and Legal Aid Society adopted the Robbins analysis when interpreting Public Officers Law § 87 (2) (e) (i), as do we. A criminal prosecution is a "particular kind of enforcement proceeding" where "disclosure of particular kinds of investigatory records  while a case is pending would generally `interfere with enforcement proceedings'" (Robbins, 437 US at 236). We emphasize that this does not mean that every document in a law enforcement agency's criminal case file is automatically exempt from disclosure simply because kept there. The agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents. Put slightly differently, the agency must still fulfill its burden under Public Officers Law § 89 (4) (b) to articulate a factual basis for the exemption.Here, the District Attorney sustained this burden. First, he identified for Supreme Court the categories of records that he sought to withhold on the basis of the exemption — i.e., correspondence with the United States Department of State "consist[ing] of crime summaries, timelines of when and where each crime occurred, witness names and personal information and witness statements." Next, he identified the generic harm that disclosure would cause — i.e., disclosure would necessarily interfere with law enforcement proceedings because the correspondence was "replete with information about the crimes committed," and so its release posed an obvious risk of prematurely tipping the District Attorney's hand. Finally, there is no doubt that law enforcement proceedings were ongoing when Lesher commenced this CPLR article 78 proceeding. Indeed, at that time there was every reason to believe that Mondrowitz would soon be returned to Brooklyn for trial. Lesher himself declared in his petition that Mondrowitz was incarcerated in Israel, awaiting extradition.
Lesher is free to make another FOIL request for the correspondence and communications that he sought in this proceeding, based on the intervening Israeli judicial decision. If he is correct in his assessment of the decision's effect — a matter for the FOIL records access officer to consider in the first instance — there is, practically speaking, no longer any pending or potential law enforcement investigation or judicial proceeding with which disclosure might interfere. Public Officers Law § 87 (2) (e) (i) would not preclude release of the records.Accordingly, the order of the Appellate Division should be affirmed, with costs.Order affirmed, with costs.