| Matter of Baez v Brown |
| 2015 NY Slip Op 00754 [124 AD3d 881] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Candido Baez,Appellant, v Richard A. Brown, Queens County District Attorney,Respondent. |
Candido Baez, Ossining, N.Y., appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, RonaI. Kugler, and Danielle S. Fenn of counsel), respondent pro se.
In a proceeding pursuant to CPLR article 78 to compel the production of certainmaterial pursuant to the Freedom of Information Law (Public Officers Law art 6) and foran award of litigation costs, the petitioner appeals, as limited by his brief, from statedportions of a judgment of the Supreme Court, Queens County (Weiss, J.), dated January2, 2013, which, inter alia, denied those branches of the petition which were to compel therespondent to produce unredacted copies of certain documents which had previouslybeen provided to the petitioner with redactions, color copies of certain photographspreviously provided to the petitioner, color copies of photographs of the deceased victimin a related criminal action, certain material the production of which was denied by therespondent's Records Access Officer in a letter dated May 2, 2008, and certain materialthat was requested by the petitioner in a letter dated July 5, 2008, and for an award oflitigation costs.
Ordered that the judgment is modified, on the law, (1) by deleting the provisionsthereof denying those branches of the petition which were to compel the respondent toproduce unredacted copies of certain documents which had previously been provided tothe petitioner with redactions, color copies of certain photographs previously provided tothe petitioner, and color copies of photographs of the deceased victim in a relatedcriminal action, and for an award of litigation costs, and substituting therefor provisionsgranting those branches of the petition, and (2) by deleting the provisions thereofdenying those branches of the petition which were to compel the respondent to producecertain material the production of which was denied by the respondent's Records AccessOfficer in a letter dated May 2, 2008, and certain material that was requested by thepetitioner in a letter dated July 5, 2008, and substituting therefor provisions grantingthose branches of the petition to the extent of requiring the respondent to make a diligentsearch for those materials, inform the petitioner of their status, and take any appropriateadditional action with respect to them; as so modified, the judgment is affirmed insofaras appealed from, with costs to the petitioner, and the matter is remitted to the SupremeCourt, Queens County, for further proceedings in accordance herewith.
In March 2008, more than 18 years after he was sentenced upon his conviction of,inter alia, murder in the second degree, the petitioner, an inmate at the Sing SingCorrectional [*2]Facility, requested from the respondent,pursuant to the Freedom of Information Law (see Public Officers Law§ 84 et seq. [hereinafter FOIL]), the disclosure of certain documentsrelating to his trial and conviction. Asserting that the response to his FOIL request wasinadequate, the petitioner commenced this CPLR article 78 proceeding. In a judgmentdated January 2, 2013, the Supreme Court, inter alia, denied those branches of thepetition which were to compel the respondent to produce unredacted copies of certaindocuments which had previously been provided to the petitioner with redactions, colorcopies of certain photographs previously provided to the petitioner, color copies ofphotographs of the deceased victim, certain material the production of which was deniedby the respondent's Records Access Officer (hereinafter the RAO) in a letter dated May2, 2008, and certain material that was requested by the petitioner in a letter dated July 5,2008, and for an award of litigation costs.
In a proceeding pursuant to CPLR article 78 to compel the production of materialpursuant to FOIL, the agency denying access has the burden of demonstrating that thematerial requested falls within a statutory exemption, which exemptions are to benarrowly construed (see Public Officers Law § 89 [5] [e], [f]; Matter of West Harlem Bus. Groupv Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Matter of Data Tree, LLC vRomaine, 9 NY3d 454, 462-463 [2007]; Matter of Fappiano v New YorkCity Police Dept., 95 NY2d 738, 746 [2001]; Matter of Verizon N.Y., Inc. v Mills, 60 AD3d 958, 959[2009]). This showing requires the entity resisting disclosure to "articulate a'particularized and specific justification for denying access' " (Matter of Dilworth v WestchesterCounty Dept. of Correction, 93 AD3d 722, 724 [2012], quoting Matter ofCapital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986])."Conclusory assertions that certain records fall within a statutory exemption are notsufficient; evidentiary support is needed" (Matter of Dilworth v Westchester CountyDept. of Correction, 93 AD3d at 724). Because FOIL is "based on a presumption ofaccess to the records" (Matter of Data Tree, LLC v Romaine, 9 NY3d at 462),"FOIL 'compels disclosure, not concealment' " wherever the agency fails todemonstrate that a statutory exemption applies (id. at 463, quoting Matter ofWestchester Rockland Newspapers v Kimball, 50 NY2d 575, 580 [1980]; seeMatter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492[1994]).
In this case, in response to the petitioner's FOIL requests, the respondent providedthe petitioner with certain documents that contained numerous redactions, and denied thepetitioner's request for photographs of the deceased victim. The respondent based theredactions and the denial of the request for the photographs upon the "unwarrantedinvasion of personal privacy" statutory exemption (Public Officers Law§ 87 [2] [b]). However, since the respondent failed to proffer more thanconclusory assertions to support these claims, the Supreme Court erred in determiningthat the respondent met his burden of demonstrating that the redactions and denial of therequest for the photographs of the deceased victim fell within this statutory exemption(see Public Officers Law § 89 [5] [e], [f]; Matter of WestHarlem Bus. Group v Empire State Dev. Corp., 13 NY3d at 885; Matter of Cook v Nassau CountyPolice Dept., 110 AD3d 718, 719 [2013]; Matter of Verizon N.Y., Inc. vMills, 60 AD3d at 959).
The Supreme Court also erred in determining that the petitioner was not entitled toreceive color copies of certain photographs that were disclosed to him. Public OfficersLaw § 86 (4) provides that photographs are records within the meaning ofthe statute, and section 87 (1) (b) of the statute requires an agency to provide copies orreproductions of records. Pursuant to Public Officers Law § 87 (1) (c) (ii),an agency may engage an outside professional service to prepare a copy of a record if itsinformation technology equipment is inadequate to prepare a copy. Applying theseprinciples, we find that since the respondent did not claim he was unable to comply withthe petitioner's request, FOIL requires him to provide the petitioner with color copies ofall disclosable photographs in his possession.
Accordingly, the Supreme Court should have granted those branches of the petitionwhich were to compel the respondent to provide unredacted copies of the documentspreviously provided to the petitioner, color copies of the photographs previouslyprovided to the petitioner, and color copies of photographs of the deceased victim.
The Supreme Court also erred in denying that branch of the petition which was to[*3]compel the respondent to provide certain material,the production of which was denied by the RAO in a letter dated May 2, 2008. The RAOdenied the request for the production of those materials based on her statement that"nothing in the case file met [the petitioner's] description of these items." However, whenan agency is unable to locate documents properly requested under FOIL, the PublicOfficers Law requires the agency to "certify that it does not have possession of [arequested] record or that such record cannot be found after diligent search" (PublicOfficers Law § 89 [3] [a]; see Matter of Rattley v New York City PoliceDept., 96 NY2d 873, 875 [2001]). We find that the RAO's statement did notconstitute an adequate certification. In addition, the respondent did not respond to thepetitioner's disclosure requests contained in a letter dated July 5, 2008. The SupremeCourt therefore should have granted those branches of the petition which were to compelthe respondent to produce certain material the production of which was denied by theRAO in a letter dated May 2, 2008, and certain material that was requested by thepetitioner in a letter dated July 5, 2008, to the extent of requiring the respondent to makea diligent search for those materials, inform the petitioner of their status, and take anyappropriate additional action with respect to them.
A court may award litigation costs to a petitioner in a CPLR article 78 proceeding toreview the denial of a FOIL request where the petitioner has "substantially prevailed" inthe proceeding, and "(i) the agency had no reasonable basis for denying access; or (ii) theagency failed to respond to a request or appeal within the statutory time" (Public OfficersLaw § 89 [4] [c]). In light of our determination, the petitioner is entitled torecover the costs of bringing this proceeding, as he substantially prevailed in thisproceeding and the respondent had no reasonable basis for denying access to many of thedocuments requested. We therefore remit this matter to the Supreme Court, QueensCounty, for a hearing to determine the amount of the petitioner's costs for bringing thisproceeding.
The petitioner's remaining contentions are without merit. Mastro, J.P., Austin,Maltese and Barros, JJ., concur. [Prior Case History: 2013 NY Slip Op30012(U).]