| Matter of Marino v Pataki |
| 2008 NY Slip Op 08217 [55 AD3d 1171] |
| October 30, 2008 |
| Appellate Division, Third Department |
| In the Matter of Leo A. Marino, Appellant, v George E. Pataki, asGovernor of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the Supreme Court (Sackett, J.), entered August 22, 2007in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article78, to review a determination of respondent denying petitioner's Freedom of Information Law request.
Petitioner, an inmate at Collins Correctional Facility in Erie County, filed a request under theFreedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) for any and allrecords concerning his prior criminal case (People v Marino, 212 AD2d 735 [1995], lvsdenied 85 NY2d 976 [1995], 86 NY2d 797 [1995]), which were in the possession ofrespondent's office in connection with his clemency application. Respondent's Records Access Officerthereafter informed petitioner that, after a review of the records, respondent's office did not possess ormaintain any documents responsive to his FOIL request. Upon petitioner's administrative appeal of thatdetermination, respondent's Records Appeal Officer advised petitioner that, since the initialdetermination, 14 pages of responsive documents had been located—which consisted ofpetitioner's presentence investigation report, his "rap sheet" and a one-page printout containinghandwritten notes—but that such documents were protected from disclosure under PublicOfficers Law § 87. Petitioner subsequently commenced the instant CPLR article 78 proceedingchallenging the denial. After an in camera review of the documents, [*2]Supreme Court found that they were exempt from disclosure anddismissed the petition. This appeal ensued.
Initially, we note that during the pendency of this appeal, the Attorney General has advised thisCourt that, upon further review, he determined to disclose to petitioner his previously denied three-page"rap sheet." Inasmuch as petitioner has been provided a copy of this document, his challenges to thedenial of such disclosure have been rendered moot (see Matter of Ramos v New York State Div. of Parole, 2 AD3d 936,937 [2003]).
As for petitioner's presentence investigation report, petitioner stated in both his affidavit inopposition to respondent's answer and his brief on appeal that he did not request this document as partof his FOIL request; rather, he sought "only the criminal records relating to [his] criminal case." In short,petitioner seeks disclosure of the documents used to compile the presentence investigation report,rather than the report itself. However, petitioner failed to articulate a factual basis to support hiscontention that those requested documents were within respondent's control (see Matter of Gould vNew York City Police Dept., 89 NY2d 267, 279 [1996]; Matter of Di Rose v City ofBinghamton Police Dept., 225 AD2d 959, 960 [1996]).
Lastly, upon our in camera review of the one-page printout containing handwritten notes, we agreewith Supreme Court's conclusion that it constituted an interagency communication protected fromdisclosure under Public Officers Law § 87 (2) (g) (iii). "Pursuant to FOIL, government recordsare presumptively available to the public unless they are statutorily exempted by Public Officers Law§ 87 (2)" (Matter of Edwards v NewYork State Police, 44 AD3d 1216, 1216 [2007] [citations omitted]). The exemption for " '"inter-agency materials" ' has been interpreted to mean deliberative materials or 'communicationsexchanged for discussion purposes not constituting final policy decisions' " (Matter of Mingo v NewYork State Div. of Parole, 244 AD2d 781, 782 [1997], quoting Matter of Russo v NassauCounty Community Coll., 81 NY2d 690, 699 [1993]; see Matter of Xerox Corp. v Town ofWebster, 65 NY2d 131, 132 [1985]). The one-page document at issue contains backgroundinformation, specified factors and handwritten notes provided to assist respondent in deciding whetherto grant petitioner's clemency application. As this document is "a mere aid to [respondent] in reaching afinal decision, it fits squarely within the statutory exemption" for predecisonal, deliberative interagencymaterial provided by employees of one agency to assist a decision maker in another agency in reachinga determination (Matter of Ramahlo v Bruno, 273 AD2d 521, 522 [2000], lv denied95 NY2d 767 [2000]; see Matter of Griggerv New York State Div. of Parole, 11 AD3d 850, 852 [2004], lv denied 4 NY3d704 [2005]; Matter of Mingo v New York State Div. of Parole, 244 AD2d at 782).
Rose, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, withoutcosts.