Petitioner brings this Article 78 proceeding challenging respondent’s failure to provide documents or a denial in response to his Freedom of Information Law (FOIL) request. Respondent cross-moves, pre-answer, to dismiss the petition due to lack of subject matter jurisdiction and mootness. The Court grants the cross-motion for the reasons below.Petitioner, who is currently incarcerated, made his request by letter dated April 24, 2017. The letter asks for numerous documents relating to the criminal case against him, as he intends to challenge his conviction. Respondent replied by letter around May 4, 2017. The letter indicated that respondent had received the request and would respond within approximately 90 days. When respondent did not provide a response within 90 days, petitioner attempted to follow up, but did not receive a response. He wrote to respondent on February 23, 2018, stating that he was treating respondent’s failure as a constructive denial of his application and indicating that this letter constituted an appeal of his denial. Petitioner initiated this action with a petition and supporting papers which are dated March 7, 2018. The petition argues that respondent did not perform its duty to provide a response to his demand (citing 12 NYCRR 1401.7 [b]). It stresses that respondent’s records are presumptively available to the public upon request unless a specified exemption applies (citing Matter of Gould v. New York City Police Dept., 89 NY2d 267, 274-75 [1996]; see Public Officer’s Law §87 [2]). The petition alleges that respondent defaulted on its duties under Public Officer’s Law §89 (3) (a).On March 12, 2018, after the petition was filed, respondent sent a letter to petitioner in which it indicated that the May 4, 2017 letter was responsive to his original request, and further stated that respondent had not concluded its review or its attempt to locate documents responsive to his request. On July 17, 2018, respondent sent certain of the requested documents to petitioner. Its covering letter, by the officer who had been assigned the FOIL demand, indicated that it had located and provided redacted copies of the complaint report and the complaint follow-up reports, among other documents it did not identify. The letter also stated that after diligent search respondent had not located “the Damani orders and applications, witness DA custody records, detective memo and log book entries, detective field investigation reports, unusual occurrence reports, detective field log books, detective travel and transport sign-in log books, relocation unit records, material witness orders and applications, action sheets, chronological data sheets, detective memo books, records regarding witness cooperation or refusal, and vouchers/stipends issued to witnesses” (respondent’s July 17, 2018 letter to petitioner). The letter additionally informed petitioner of his right to appeal the decision within 30 days, or by around August 17, 2018.Simultaneously, respondent served and filed a pre-answer cross-motion to dismiss the petition. The cross-motion argues that dismissal is appropriate for a few reasons. One, petitioner started this Article 78 proceeding before respondent reached its final determination. Under CPLR 7801, respondent notes, a petitioner must exhaust his administrative remedies before he or she can commence an Article 78 proceeding. In addition, for this reason, respondent asserts that proceeding is premature. Furthermore, it argues the petition is premature because there is no time limit by which respondent is obliged to comply with a FOIL request. Because its efforts were ongoing, respondent states, the petition therefore must be dismissed.Even if the Court concludes it has jurisdiction over the proceeding, respondent continues, the petition is moot because of respondent’s July 17, 2018 responsive production and the accompanying letter in which it explained that it did not possess the other requested documents. According to respondent, this is sufficient to satisfy its obligations under FOIL.DISCUSSION./i>Respondent is correct that “Public Officers Law §89 (3) mandates no time period for denying or granting a FOIL request, and rules and regulations purporting to establish an absolute time period have been held invalid” (Matter of New York Times Co. v. City of New York Police Dept., 103 AD3d 405, 407 [1st Dept 2013]). However, when a respondent provides an approximate date by which it shall provide its response and “fails to respond to a request within a reasonable time after the approximate date given,” the petitioner may deem this as a constructive denial of his or her FOIL request (see 21 NYCRR §1401.5 [e]; Kohler-Hausmann v. New York City Police Dept., 133 AD3d 437, 437 [1st Dept 2015]). Thus, petitioner’s February 23, 2018 letter did not err in seeking to appeal the constructive denial.Petitioner’s decision to commence this proceeding less than two weeks after he mailed the appeal letter to respondent is more questionable, as he did not wait for the response to his appeal, which respondent sent only five days after the commencement of this proceeding (cf. Empire Center for Public Policy, Inc. v. New York City Office of Payroll Admin., 158 AD3d 529, 530 [1st Dept 2018] [petition premature where, unlike here, respondent replied to petitioner's follow up inquiry stating that it sought more time in which to provide response]). The Court need not resolve this issue, however, because since the initiation of this proceeding respondent has complied with petitioner’s FOIL request. Contrary to petitioner’s arguments in reply, the “production of records responsive to the requests as part of their motion to dismiss the instant proceeding, and certification that they had conducted a diligent search for the records they could not locate” renders the proceeding moot (Matter of Taylor v. New York City Police Dept. FOIL Unit, 25 AD3d 347, 347 [1st Dept 2006]). Respondent is not required to produce documents that it certifies it does not have in its possession.Petitioner’s opposition to the cross-motion does not persuade this Court otherwise. Petitioner provides, in camera, an exhibit which contains an unusual occurrence report and the affidavit of a detective. It is not clear, however, where petitioner obtained this document. Moreover, petitioner does not show why his production proves that respondent has retained and can locate a copy of these two documents, or that respondent has withheld any other documents. Thus, this submission does not provide a “demonstrable factual basis to support [petitioner's] contention that the requested documents were within the Police Department’s control” (Tarantino v. New York City Police Dept., 136 AD3d 598, 599 [1st Dept 2016] [citation and internal quotation marks omitted]). In addition, petitioner’s contention that respondent did not certify that it had conducted a diligent search has no merit, as the record access officer who conducted the search stated, in the first sentence of his letter, that such a search had been conducted (see Grabell v. New York City Police Dept., 139 AD3d 477, 479 [1st Dept 2016] [relying on Matter of Rattley v. New York City Police Dept., 96 NY2d 873, 875 (2001)]).Accordingly, it isORDERED that the petition is denied; and it is furtherORDERED that the cross-motion is granted; and it is furtherORDERED and ADJUDGED that the petition is dismissed. The Clerk is directed to enter a judgment of dismissal.Dated: November 8, 2018
