ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND v. NEW YORK CITY POLICE DEPARTMENT (2008)

Supreme Court, Appellate Division, First Department, New York.

ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, Petitioner-Appellant, v. NEW YORK CITY POLICE DEPARTMENT, Respondent-Respondent.

Decided: November 18, 2008

SAXE, J.P., NARDELLI, MOSKOWITZ, RENWICK, FREEDMAN, JJ.

Asian American Legal Defense and Education Fund, New York (Tushar J. Sheth of counsel), and Weil, Gotshal & Manges, LLP, New York (W. Andrew Ryu and Jonathan Bloom of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered June 1, 2007, which denied the petition brought pursuant to CPLR article 78 challenging respondent's denial of petitioner's Freedom of Information Law (FOIL) request for documents, and granted respondent's cross motion to dismiss the petition, unanimously affirmed, without costs.

Petitioner's challenge to respondent's denial of its FOIL request was properly rejected since respondent established that it did not possess or maintain the records sought by petitioner (Public Officers Law § 89[3][a] ). Respondent certified that despite its reasonable efforts, documents pertaining to immigration-related arrests and its communications with federal immigration agencies were not retrievable from its databases (see e.g. Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 464-465, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ). Contrary to petitioner's contention, the record demonstrates that respondent did not offer “shifting justifications” for the denial of the FOIL request.

We have considered petitioner's remaining arguments, including its request for an award of counsel fees, and find them unavailing.

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