Justice Ralph T. Gazzillo

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Attorney Mitev sought to direct Suffolk County Police Department (SCPD) to provide him a 911 emergency call recording under his Freedom of Information Law (FOIL) request. His firm represents Shannon Gilbert’s administratrix in a pending action regarding Gilbert’s death. She was last seen alive May 1, 2010, and disappeared thereafter. New York State police received a 911 call from her on May 1, 2010, which was turned over to SCPD in connection with the investigation of her death. SCPD denied Mitev’s FOIL request citing Public Officers Law §87(2)(e)(i)—material was relevant to an ongoing investigation­—and County Law §308(4)—calls into the enhanced 911 system were not available under FOIL. Mitev appealed, but same was denied, and he sued. SCPD moved, pre-answer, to dismiss the petition arguing the requested record was exempt from disclosure under §87(2)(a) and §308(4). The court denied SCPD’s motion noting while Mitev’s request may fall “squarely within the exemption” in §308(4), he never asserted, nor was it shown if Gilbert’s 911 call was one “made to a municipality’s E911 system,” The court found the issue raised was beyond the narrow scope of judicial inquiry allowed on a dismissal motion in an Article 78 petition, directing SCPD to answer the petition.