IN RE: Frederick FRANKLIN (2008)

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered March 5, 2007, which denied petitioner's motion to hold respondent, the Records Access Officer of the New York County District Attorney's Office, in contempt for disobedience of this Court's prior order directing disclosure pursuant to the Freedom of Information Law (decided sub nom. Matter of Franklin v. Miner, 21 A.D.3d 276, 799 N.Y.S.2d 417 [2005], lv. denied 7 N.Y.3d 735, 818 N.Y.S.2d 187, 850 N.E.2d 1162 [2006] ), unanimously affirmed, without costs.

No reason appears to doubt respondent's assertion that despite an extensive search of the District Attorney's case files relating to the three indictment numbers specified in petitioner's requests, she was unable to locate the requested minutes of a 1982 plea taken by a certain witness at petitioner's trial.   Indeed, it appears from the parties' extensive correspondence that respondent at all times endeavored to comply with petitioner's requests in accordance with this Court's prior order-she ordered and reviewed various case files in an attempt to locate the requested plea minutes;  she located and turned over related documents, including the minutes of the witness's sentencing;  and she credibly explained to respondent that the District Attorney's Office does not order the transcript of every court proceeding.   Respondent's statement that she was unable to find the requested documents, despite a diligent search, sufficed to satisfy the District Attorney's obligations under FOIL, which, by its terms, does not require an entity to prepare records it does not possess or maintain (Public Officers Law § 89[3];  see Matter Lugo v. Galperin, 269 A.D.2d 338, 703 N.Y.S.2d 182 [2000], lv. denied 95 N.Y.2d 755, 711 N.Y.S.2d 833, 733 N.E.2d 1102 [2000] ).