| Matter of Purcell v Jefferson County Dist. Attorney |
| 2010 NY Slip Op 06882 [77 AD3d 1328] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Julie Purcell, Respondent, v Jefferson County DistrictAttorney et al., Appellants. |
—[*1] Julie Purcell, petitioner-respondent pro se.
Appeal from a judgment (denominated judgment and order) of the Supreme Court, OnondagaCounty (Brian F. DeJoseph, J.), entered June 3, 2009. The judgment awarded attorney's fees andcosts to petitioner pursuant to the Freedom of Information Law.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, tocompel respondents to comply with her request pursuant to the Freedom of Information Law (FOIL)(Public Officers Law art 6) for documents relating to a criminal matter in which she was thecomplainant. Contrary to the contention of respondents, we conclude that Supreme Court properlydenied their motion to dismiss the petition based on the alleged failure of petitioner to exhaust heradministrative remedies. "Inasmuch as [respondents] failed to advise petitioner of the availability of anadministrative appeal . . . , [they] cannot be heard to complain that petitioner failed toexhaust [her] administrative remedies" (Matter of Barrett v Morgenthau, 74 NY2d 907, 909[1989]; see Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649[2000]). In any event, the record establishes that petitioner exhausted her administrative remedies bysending a letter to respondents objecting to the denial of her FOIL request and asking respondents toconsider her letter an appeal pursuant to Public Officers Law § 89 (4) (a) (see generallyMatter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 826 [1983], mod on othergrounds 61 NY2d 958 [1984]). We further conclude that the court properly denied that part of themotion with respect to respondent Jefferson County District Attorney (District Attorney) inasmuch asthe District Attorney is an "officer[ ] or other person . . . whose action may be affected by[this] proceeding" (CPLR 7802 [a]).[*2]
We reject respondents' contention that the court erred inawarding attorney's fees and costs to petitioner pursuant to FOIL. Petitioner moved for, inter alia, thatrelief by order to show cause dated September 2008. Contrary to respondents' contention, the June2008 order did not preclude the court's subsequent award of attorney's fees inasmuch as the June 2008order merely ordered respondents to disclose certain records following an in camera review thereof.Although we agree with respondents that petitioner's September 2008 order to show cause was mootto the extent that it sought to compel respondents to disclose various documents that had already beendisclosed (see Matter of Newton v Police Dept. of City of N.Y., 183 AD2d 621, 624 [1992];see generally Matter of Fuentes vFischer, 56 AD3d 919, 920-921 [2008]), the issue of attorney's fees remained incontroversy. Contrary to the further contention of respondents, the record establishes that they "had noreasonable basis for denying access" to the majority of the records sought by petitioner (Public OfficersLaw § 89 [4] [c] [i]). Indeed, respondents offered to produce the majority of the records soughtby petitioner if she agreed to withdraw her request for attorney's fees. Even assuming, arguendo, thatrespondents had a reasonable basis for withholding certain records, we conclude that an award ofattorney's fees would nevertheless be appropriate inasmuch as respondents "failed to respond to[petitioner's] request or [her] appeal within the statutory time" (§ 89 [4] [c] [ii]). Finally, weconclude that, under the circumstances of this case, the court did not abuse its discretion in awardingattorney's fees and costs (see Matter of Powhida v City of Albany, 147 AD2d 236, 238-239[1989]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Gorski, JJ.