Decision, Order and Judgment Petitioner Frederick E. Monroe Jr., an inmate at Green Haven Correctional Facility, brings this Article 78 proceeding by order to show cause, to challenge a determination by respondent Karen Edelman-Reyes denying his Freedom of Information Law (“FOIL”) request for the disclosure of records pertaining to the investigation of a crime for which he was convicted (Public Officers Law §84-90). On January 29, 2002, petitioner was convicted under Indictment Numbers 7888/00 and 8140/00, upon a jury verdict, of six counts of burglary in the first degree, two counts of burglary in the second degree, three counts of robbery in the first degree, two counts of robbery in the second degree, two counts of robbery in the third degree, one count of assault in the first degree, and three counts of sexual abuse in the first degree. Petitioner is currently serving an aggregate sentence of 155 years in prison.By letter dated May 8, 2017, petitioner submitted a pro se FOIL request to the New York County District Attorney’s Office (“DANY”). Petitioner’s FOIL request sought 17 categories of records relating to his arrest and conviction, including:1. All DA Data Sheets with supplementary fact sheets-complete copies that were generated by the riding prosecutor(s) beginning at the earliest stages of my cases, until the end;2. All Sprint 911 calls generated in this case, and the relevant 911 audio tape recordings of this crime;3. Complaint follow-up reports or, police incident reports for these crimes, and follow-up reports, or police incident reports for this case;4. 911 dispatcher/police calls and any arrest radio-run calls;5. All 911 Sprint reports;6. All police reports, generated pertaining to property clerks invoices;7. All police/prosecution reports of request for laboratory DNA transmittal regarding any physical evidence recovered for forensic analysis and complete tests results, conducted by the office of the Chief Medical Examiner of the city of New York;8. Color photographs of the line-ups for both line-up dates, November 25, 2000 and November 30, 2000, including photographs of all line-up fillers;9. All data analysis sheets;10. All mug shot photographs shown to complainants, prior to my arrest date, and all District Attorney Field Investigation Reports, interviews, photographs, and invoices;11. All stenographic transcripts of the line-ups for both dates, November 25, 2000 and November 30, 2000;12. All notations held by the District Attorney’s Office of any plea offers, including dates, what the offers were, and before what court the offers were made;13. All case summaries-handwritten and typewritten;14. All District Attorney tracking sheets;15. All court subpoenas, including material witness orders issued and signed by the court;16. All correspondences the District Attorney sent to my trial attorney pertaining to my case; and17. All DD-5′s complaint follow-up information (police) reports. (respondent’s exhibit A at 4-17)Petitioner’s FOIL request was denied by respondent Assistant District Attorney Karen Edelman-Reyes, FOIL Records Access Officer (“RAO”) in a letter dated June 5, 2017, on two main grounds. First, relying on Public Officers Law §89 (3), respondent stated that some of the records petitioner requested did not exist in DANY’s possession. The requested records in this category included: any and all transcripts produced during line-up procedures; receipts of “any services” afforded to petitioner’s victims; 911 recordings; “Data Analysis Sheets”; and “Material Witness Orders.” Respondent further denied petitioner’s request for a second category of records because said records were previously provided to his attorney. These records included: DA datasheets; police department complaint reports and follow-up reports; 911 Sprint reports; property clerk invoices; requests for laboratory testing and any results; case summaries; line up records; copies of photographs of line-ups; photo array records; and copies of photo arrays. RAO Edelman-Reyes provided the “corresponding page number of the previously disclosed discover and Rosario materials” next to each item petitioner requested.Although most, if not all of the documents petitioner requested were either not in the possession of the DANY or already provided to petitioner’s attorney, RAO Edelman-Reyes explained that additional independent grounds existed warranting the denial of petitioner’s request. RAO Edelman-Reyes also denied petitioner’s FOIL request on the basis of Public Officers Law §87 (2)(e), that if such records were disclosed, it would reveal non-routine procedures of the DANY and NYPD. The records in this category included: “subpoenas, requests for laboratory examination and the results of such testing, records of laboratory testing by the Office of the Chief Medical Examiner (OCME) and results, all complaint follow-up records which detail and reveal the method by which investigators apprehended you and successfully prosecuted you and records associated with the line-up procedures undertaken in the investigation” (respondent’s exhibit B at 3). In addition, RAO Edelman-Reyes denied petitioner’s request for prosecuting attorneys’ tracking sheets, datasheets, and case summaries claiming that said records constituted privileged attorney work product. With respect to petitioner’s request for all notations held by the DANY pertaining to any plea offers, RAO Edelman-Reyes stated that “[a]n inspection of the court jacket reveals that no open, in court, offer or recommendation was made to [petitioner]” (respondent’s exhibit B at 5). Lastly, RAO Edelman-Reyes denied petitioner’s request for any files that revealed the identities of the women that he sexually assaulted pursuant to Civil Rights Law §50-b.On June 28, 2017, petitioner administratively appealed RAO Edelman-Reyes’s determination. Specifically, petitioner took issue with the RAO’s contention that his attorney, who petitioner maintained was no longer in practice, had ever provided him with any of the records he now sought. By letter dated July 18, 2017, Assistant District Attorney Patricia J. Bailey, a DANY FOIL Appeals Officer (“AO”), affirmed, for the most part the denial of petitioner’s FOIL request. AO Bailey’s determination, however, denied petitioner’s request on two additional grounds and remanded the matter back to RAO for clarification on two issues. To the extent petitioner sought DD-5s (detective follow-up forms) and witness statements, AO Bailey stated that such records were exempt under Public Officers Law §87 (2)(f) and Public Officers Law §87 (2)(b), as the records contained information that could endanger the life or safety of a victim and disclosure of said records would constitute an unwarranted invasion of privacy. While AO Bailey upheld the denial of access to grand jury subpoenas pursuant to CPL 190.25(4), she noted that RAO Edelman-Reyes’s decision was “not clear as to whether the files contained subpoenas which were issued for purposes other than the grand jury, and if so, whether those were accessible or otherwise exempt” (respondent’s exhibit D at 3). In addition, AO Bailey remanded the matter to the RAO to determine whether petitioner’s “attorney’s correspondences” had been copied to petitioner, if not, those files would also be accessible under FOIL (Id.).By letter dated July 25, 2017, RAO Edelman-Reyes issued her determination upon remand. In regard to petitioner’s request for subpoenas, the RAO granted access to four statecourt subpoenas contained in petitioner’s case file. The RAO also disclosed one letter from Assistant District Attorney Ryan Brackley to petitioner’s attorney, which was the only written correspondence in petitioner’s file between his attorney and the prosecuting attorney.Petitioner pro se then commenced the instant Article 78 proceeding. Petitioner seeks an order reversing RAO Edelman-Reyes’s denial of his request and directing respondent to release the requested documents. He asserts that respondent’s determination is arbitrary and capricious as the records petitioner requested are not exempt from disclosure under FOIL. Petitioner also maintains that he was never provided the subject documents in the past by his former trial attorney.DiscussionIn accordance with the desire to encourage “open government” (Matter of Newsday, Inc. v. Empire State Dev. Corp., 98 NY2d 359, 362 [2002]; Public Officers Law §84) and “public accountability” (Matter of Gould v. New York City Police Dept., 89 NY2d 267, 274 [1996]), FOIL generally “mandates all agencies to make records available to the public” (Matter of Empire Realty Corp. v. New York State Div. of Lottery, 230 AD2d 270, 272 [1997]), unless the material being sought falls within a statutory exemption (Public Officers Law §87[2]; Matter of Gould, 89 NY2d at 275). The agency seeking to prevent disclosure has the burden to establish the applicability of an exemption (Id. at 274-275). Withholding disclosure requires that “the material requested falls squarely within the ambit of one of these statutory exemptions” (Id. at 275). Thus, the responding agency “must articulate [a] particularized and specific justification” for not disclosing requested documents (Matter of Madeiros v. New York State Educ. Dept., 30 NY3d 67, 74 [2017]; Matter of Gould, 89 NY2d at 275; Matter of Luongo v. Records Access Officer, Civilian Complaint Review Bd., 150 AD3d 13, 18 [1st Dept 2017]).It is well settled that “[w]hen an agency is unable to locate documents properly requested under FOIL, Public Officers Law §89 (3) requires the agency to ‘certify that it does not have possession of [a requested] record or that such record cannot be found after a diligent search’” (Matter of Rattley v. New York City Police Dep’t., 96 NY2d 873, 875 [2001]). “Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required” (Id. at 875). A statement to that effect in an attorney’s affirmation is sufficient (Id. at 874-875). Here, RAO Edelman-Reyes’s letter dated June 5, 2017 sets forth “that on June 2 and 5, 2017, I conducted a diligent search of the file possessed by DANY related to the abovereferenced Indictment numbers and that no records responsive to [transcripts produced during line-up procedures, receipts of "any services" afforded to petitioner's victims, 911 recordings, "Data Analysis Sheets," and "Material Witness Orders"] could be found in the file” (respondent’s exhibit B at 2).1 This satisfies the requirements of Public Officers Law §89 (3).It is well settled that “[w]hen an agency is unable to locate documents properly requested under FOIL, Public Officers Law §89 (3) requires the agency to ‘certify that it does not have possession of [a requested] record or that such record cannot be found after a diligent search’” (Matter of Rattley v. New York City Police Dep’t., 96 NY2d 873, 875 [2001]). “Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required” (Id. at 875). A statement to that effect in an attorney’s affirmation is sufficient (Id. at 874-875). Here, RAO Edelman-Reyes’s letter dated June 5, 2017 sets forth “that on June 2 and 5, 2017, I conducted a diligent search of the file possessed by DANY related to the abovereferenced Indictment numbers and that no records responsive to [transcripts produced during line-up procedures, receipts of "any services" afforded to petitioner's victims, 911 recordings, "Data Analysis Sheets," and "Material Witness Orders"] could be found in the file” (respondent’s exhibit B at 2).1 This satisfies the requirements of Public Officers Law §89 (3).Denial of the remaining requested documents is appropriate because as respondent points out, petitioner is not entitled to receive duplicate copes of records that had previously been provided to him during his criminal trial (see Matter of Kelly v. New York City Police Dept., 286 AD2d 581, 581 [1st Dept 2001]). The First Department has also held that it is petitioner’s burden to establish “by admissible evidence that the documents requested had not been provided to the attorney who had represented him at his criminal trial or that they were no longer available to petitioner” (Matter of Brightly v. Lai, 266 AD2d 131, 132 [1st Dept 1999]; Lebron v. Morales, 271 AD2d 241, 242 [1st Dept 2000]). Respondent asserts that DANY previously provided petitioner’s attorney Sol Schwartzberg, Esq., with 1377 pages of records prior to commencement of petitioner’s hearing and trial in late 2001 and early 2002. In support of this assertion, respondent points to her June 5, 2017 letter wherein she provided the “corresponding page number of the previously disclosed discovery and Rosario materials” next to each item petitioner requested as evidence of the item’s prior disclosure. Additionally, of import, is AO Bailey’s notation that petitioner’s trial attorney was still practicing and that she recently received press coverage for his current representation of a client (respondent’s exhibit D at 1). Petitioner merely asserts that he was never provided the subject documents in the past by his former attorney. Absent any indication that petitioner made any recent attempts at communicating his request for these very documents to Mr. Schwartzberg, the Court finds that respondent has established that she did not improperly deny petitioner’s FOIL request for the following records: DA datasheets, 911 Sprint records, property clerk invoices, requests for laboratory testing and any results, case summaries, line-up records, copies of photographs of line-ups, photo array records, and police department complaint report and follow up records. (see Matter of Kassebaum v. Morgenthau, 270 AD2d 71 [1st Dept 2000] [denying FOIL request to compel criminal court records as petitioner did not show that requested documents, which were made available during criminal trial, were no longer in his or his attorney's possession]).With respect to the other exemptions raised by respondent, namely Public Officers Law §§87 (2)(e), 87 (2)(f), 87 (2)(b), and Civil Rights Law §50-b, the Court need not address whether or not those exemptions apply to the instant facts. Such consideration is unnecessary because respondent has established that it properly denied petitioner’s FOIL request on the grounds that said records were either already furnished to petitioner’s attorney or not in respondent’s possession under Public Officers Law §89 (3).In accordance with the foregoing, it is herebyORDERED and ADJUDGED that the petition is denied, and the proceeding is dismissed in its entirety; and it is furtherORDERED that counsel for the respondent must serve a copy of this order with notice of entry upon the County Clerk’s office, which is directed to dismiss the petition.This constitutes the Decision and Order of the Court.Dated: 2018
