Judges Stein, Fahey, Feinman and Peters concur.Decided: November 21, 2017
*1Opinion by Judge Rivera.:On this appeal we clarify the proper interpretation of section 87 (2) (e) (iii) of our State’s Freedom of Information Law (Public Officers Law art 6 [FOIL]), under which a government agency may seek to exempt from public inspection those records, or a portion thereof, “compiled for law enforcement purposes and *2which, if disclosed, would… identify a confidential source or disclose confidential information relating to a criminal investigation” (Public Officers Law §87 [2] [e] [iii]). We hold that a government agency may rely on this exemption only if the agency establishes (1) that an express promise of confidentiality was made to the source, or (2) that the circumstances of the particular case are such that the confidentiality of the source or information can be reasonably inferred.Here, the Second Department applied the wrong standard when it held that the District Attorney of Nassau County properly denied petitioner Jesse Friedman’s FOIL request for records relating to his conviction. The court relied on its precedent that identifying information and statements gathered in the course of a police investigation from witnesses who do not testify at trial are presumptively confidential and, as such, are exempt from disclosure under FOIL. No other Appellate Division Department has adopted this interpretation of section 87 (2) (e) (iii). Rather, the other Departments have properly required some express or implied assurance of confidentiality to justify withholding information, including the names or identities of sources. The federal courts have required a similar showing under the federal Freedom of Information Act (FOIA).We conclude that the Second Department misinterpreted section 87 (2) (e) (iii), and respondent’s denial of petitioner’s FOIL request must be analyzed under the proper standard as set *3forth in this opinion. Therefore, we now reverse the Appellate Division order and remit the matter to Supreme Court.I.This appeal is the latest in petitioner’s efforts to overturn his decades-old child sex crime convictions. In this litigation, petitioner seeks information in the control of the Nassau County District Attorney’s Office, including the victim statements and other information gathered during police interviews of child witnesses. Petitioner argues that this material is necessary to establish his claim of actual innocence. Before turning to the legal issues, we briefly summarize the events that led to petitioner’s conviction and the procedural history of the matter before us.A.In 1987, then 18-year-old petitioner and his father were arrested on multiple counts of sexual abuse of several children between the ages of 8 and 12. According to the charges contained in the three indictments filed against petitioner, the abuse occurred over five years while the children attended an after-school computer class taught by petitioner’s father at their family home. There was no forensic evidence of physical abuse and the prosecution relied heavily on the children’s allegations made after questioning by the police, who employed tactics and interview techniques that the District Attorney concedes were “not ideal” and are no longer in use.
