State Rebuffs FOIL Request on KJ Penisgate
New York State Police issued its final rebuttal on Apr 6 to HN’s request to obtain police reports relating to the Johanan Cohen death case, about which rumors circulated at the time of death in January 2007 that the boy’s body was found with a severed penis by the Hatzalah, the volunteer ambulnace corps in Kiryas Joel.
The event was first popularized by Deborah Feldman in her blog which she subsequently incorporated in her book, Unorthodox, released last February. The book’s release unleashed another round or recriminations between those inclined to believe the report and those who opt to dismiss it as ludicrous.
Hella Winston reported in The Jewish Week that she “investigated” the allegation and found it groundless, but she only pursued leads that were favorable to the suicide claim, which is the cause of death reportedly listed in the death certificate –obtained by Winston through a cooperative family member but NOT revealed to the public.
Both David Lerner in a guest post on Frum Satire and I on HasidicNews.com have argued the case that the allegation ought to be taken seriously and Winston has actually done more harm than good by conducting a biased investigation and presenting a partial report on the matter.
Winston reported that she had possession of the death certificate but she refused to release information other than the favorable report that it was “confirmed” a suicide. She wouldn’t for example, tell us or show us the date the certificate was issued. If the state issued the certificate AFTER the body had been buried, it wouldn’t tell us much beyond a rubber-stamping action by the state of reports by village officials and family members.
Since by New York State law death certificates are only obtainable by blood-kin of the deceased or by permission of the kin, HN attempted to investigate by seeking access to state police reports pertaining to this event. Unlike death certificates, police reports fall under the New York State FOIL (freedom of information law) act and so the state is required to disclose requested records unless exempted by special provisions in the law. See PDF file of our FOIL request.
But our request was rejected on March 23, 2012, based on the section 89, clause 2 exception, allowing the government to withhold records “to prevent unwarranted invasions of personal privacy.” See accompanying image scan of rejection letter.
We vehemently disagree with the agency’s interpretation and application of the “unwarranted invasion of privacy” exception clause, on several grounds:
1) Whose privacy? The records pertain to a person who is dead. A dead person does not have the right to privacy. In fact, they have no rights at all to the best of my knowledge. The exception clause makes no mention anywhere about protecting the rights of FAMILY members of the subject. Moreover, if family members and/or others are protected, where do we draw the line? There’s always going to be someone who is offended and wishes to invoke “invasion of privacy” protection.
2) The law in subsection (b) spells out numerous examples that would constitute an “unwarranted invasion of personal privacy”, none of which apply to our case. They mostly refer to information about an individual that the public has no legitimate interest in, such as a medical record or a social security number, in which case ONLY the parts that are of no use to the public may be omitted in the disclosure. The withholding of an entire police report is not discussed.
3) How is this “unwarranted”? If a crime is alleged to have been committed, especially such a grave crime as murder, and there’s a possibility of a murderer on the loose who may attack again, how is this not a sufficiently important reason to VIOLATE the suspect’s privacy and release the information to the public so that the public and government agencies can take appropriate action to protect itself. It is preposterous to suppose that a criminal or even a likely criminal has a right to have their police records withheld from public knowledge and scrutiny based on privacy; this clearly was NOT the intent of the law.
Our objections were articulated in a letter dating March 30, 2012. see copy. The appeals board responded to us on April 6, 2012 affirming the original rejection of our request without any further explanation.
Government agencies are known NOT to be very eager to positively respond to individual citizen’s requests when there isn’t any urgency or public outcry. But our Penisgate case is a bit over the top. The question we are asking isn’t merely whether the state interpreted the law correctly. We are suspecting that KJ village officials had alerted state officials to potential inquiries on the case and have reached an understanding that the state will keep the lid on the case so that no potentially scandalous details leak out to the public. As we all know, the technicalities are then only a matter of course. There’s always some clause or some subsection that the agency can lean on administratively in defending its position.
In fact, the morning after HasidicNews.com first published the name of the deceased, Johanan Cohen, I received an urgent call from Kiryas Joel public safety director Mosha Witriol. He wasn’t as much angry at me for disclosing the name as he was eager to know WHAT ELSE do I know about the incident. Caught off guard, I assured him that I don’t (and I indeed didn’t) and I expressed my wonder why he was asking me about the case when he is the one who would know or have easy access to information about the case. I realized later that the urgency of his tone of voice and his concentration on what I know rather than rebuffing the arguments I had made in the HN article, were sinister signs that cover-up is in progress. It seemed that he was about to threaten me or offer to pay me off if I had information that was even more revealing.
Hence, we have reached the conclusion that a cover-up is taking place here. We are once again urging the state to disavow its defense and cover-up of an incident that clearly contains a smoking gun. Our activism in this continues. We are prepared to sue the State police in court to compel them to release the appropriate records.
This is NOT about Deborah Feldman. This is about a possible murderer –someone guilty of filicide– who is out and about with his shreimel and bekisheh, a teacher in the holy village of KJ. It is against state law, against Jewish law and against common decency to allow a son-murderer to avert punishment, all for the sake of preserving the image and repute of the village. The village should do the right thing: open up the kimono on the case and eject the murderer from its midst if there is one, as the Torah says:
Num 35:33-34 So ye shall not pollute the land wherein ye are: for blood, it polluteth the land; and no expiation can be made for the land for the blood that is shed therein, but by the blood of him that shed it. And thou shalt not defile the land which ye inhabit, in the midst of which I dwell: for I, Jehovah, dwell in the midst of the children of Israel.