| Matter of Covington v Sultana |
| 2009 NY Slip Op 00584 [59 AD3d 163] |
| February 3, 2009 |
| Appellate Division, First Department |
| In the Matter of John Covington, Appellant, v John Sultana et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel),for respondents.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered June 13, 2008,which, in a proceeding to compel respondents to respond to petitioner's Freedom of InformationLaw (FOIL) request for "the actual memo books and notes" of certain Police Departmentpersonnel regarding certain crimes, denied the application as moot and dismissed the petition,unanimously affirmed, without costs.
The proceeding was rendered moot by the October 26, 2007 letter from respondents' RecordsAccess Officer certifying that, after a diligent search, all memo book entries responsive to therequest had been found and were being turned over (see Matter of Rattley v New York CityPolice Dept., 96 NY2d 873, 875 [2001]; Matter of Babi v David, 35 AD3d 266 [2006]). A different result isnot required by the fact that, after petitioner appealed the October 26, 2007 determination, moreresponsive memo book entries were found and turned over, where, before the issuance of theorder on appeal, respondents had turned over the additional entries and certified for the secondtime that, after a diligent search, no further responsive records were in their possession (seeMatter of Madrassa Community Coalition v New York City Dept. of Educ., 20 Misc 3d1116[A], 2008 NY Slip Op 51367[U], *6 [2008]). To the extent the proceeding can be viewed asa challenge to the responsiveness of the records that were turned over, petitioner is not entitled tothe original black memo books actually carried by the police officers at the time of the events inquestion, but only to copies thereof with appropriate redactions, because redactions of exemptmaterial were necessary (see Public Officers Law § 87 [2] [b], [e]; see Matter of Brown v Goord, 45AD3d 930, 932-933 [2007], lv dismissed 10 NY3d 796 [2008]). Petitioner's requestfor records pertaining to police interviews of all witnesses to the crimes is an expansion of hisoriginal FOIL request and was not raised in his CPLR article 78 petition. Accordingly, petitionerhas not exhausted his administrative remedies with respect to this expanded request (see Matter of Carty v New York CityPolice Dept., 41 AD3d 150 [2007]). We have considered petitioner's other argumentsand find them unavailing. Concur—Gonzalez, J.P., Buckley, Catterson, McGuire andAcosta, JJ.