Did Mike Green Comply with the Freedom of Information Law?

I listened to the debate between Mike Green and Cara Briggs on 1180 Wham news. Towards the end of the debate, Mike Green cited examples in which Cara Briggs offered plea bargains on sex offender cases. Cara Briggs responded by asking whether he obtained those cases while using Monroe County time and resources.

That was a legitimate question and a question which (obviously) came off the cuff. A candidate for public office cannot use government resources to further his campaign - meaning he cannot make calls from his office phone and solicit contributions and/or he cannot use government purchases papers to print out campaign fliers and/or he cannot obtain government documents for campaign use while he is supposed to be working. The question of whether Mike Green obtained these files while working as the District Attorney is a good and legitimate question but it may also be a question which may be difficult to answer (unless, of course, Mike Green offers to answer it).

Far more serious though is whether Mike Green complied with the requirements of New York's Freedom of Information Law.

Mike Green stated he reviewed some files in which Cara Briggs offered a reduction from a felony sex offense to a misdemeanor sex offense. The District Attorney's Office, as a government agency has a duty to maintain and store its files. For example, it is the duty of the District Attorney's Office to maintain and store all the files (opened and closed) ever prosecuted by Mike Green and Cara Briggs. Frequently, a prosecutor may have to order a closed case file in order to do his job as a prosecutor. Examples of this include

1. A Defendant appeals his conviction
2. A prosecutor wants to introduce evidence of the Defendant's prior crimes as evidence.
3. A prosecutor wants to write a letter stating his position on parole.
4. etc.

Under certain circumstances, a private citizen could view the non-privileged contents of a closed file maintained by the District Attorney's Office. In order to do this, that person would have to file what is called a Freedom of Information Law request (a "FOIL request') specifying exactly what government document that person wanted to review.

As previously stated, prosecutors routinely request closed case files when it has something to do with their prosecutorial function. Mike Green is the County's Chief Prosecutor and I am reasonably certain that he has requested a closed case every now and again.

However, as stated above, when someone is a candidate for office, that person cannot use government resources for campaign purposes. As a corollary, if Mike Green the candidate, wanted to review closed case files, he (or someone on his behalf) would have to file a FOIL request with a designated FOIL compliance officer. I do not know whether Mike Green filed a FOIL request in order to obtain those files or not but it is imperative that we find out.

You may ask, "so what?" Well, here is the "so what paragraph." There are (at least) 2 reasons why this is important:

1. If Mike Green the candidate did not file a FOIL request and, instead, requested these closed files like he would any other closed file, it would be an abuse of his elected office.
2. The three files that Mike Green "reviewed" were three sex crimes files. When it comes to sex crimes, under Civil Rights Law Section 50-b, there is some information pertaining to the victim which is deemed confidential. As a prosecutor, Mike Green would be privy to any information which falls under the confidentiality requirements of Civil Rights Law Section 50-b. As a candidate, though, he is like any other private citizen and must not allowed to see that confidential information. It would then be incumbent upon the FOIL compliance officer to make sure any confidential information was redacted or otherwise not made available. Now, if Mike Green the candidate did not file a FOIL request and, instead, requested these closed files containing confidential information under Civil Rights Law Section 50-b, then Mike Green would have violated the law - a law designed to protect victims of sex offenses.

"So what?" If Mike Green the candidate did not comply with the proper legal channels to obtain this information about Cara Briggs, he would have compromised the integrity of his elected office AND he would have done so for his own personal gain (winning the election).

I have to reserve judgment on "if" a FOIL request was filed because I do not know. I do know though that if a FOIL request was not filed, that would be an unconscionable act especially given the privileged information involved.

If Mike Green were to have said, "I filed a FOIL request and, as a result, I reviewed some of Cara Briggs' files..." his actions would enjoy the presumption of legality. He did not say that and, moreover, given the tenor and tone of his voice when he said it, it gave me the strong feeling that he, in fact, did not file a FOIL request. As I said, I have to reserve judgment because I do not have the requisite evidence to be certain, but based on his tenor and tone of voice when he said it, I have grave suspicions...

... and I hope I am not the only one.