IN RE: the Application of Alvin AGUAYO (2023)

By order to show cause and verified petition with annexed exhibits and a request for relief pursuant to CPLR 1101(f) filed on December 6, 2021, petitioner Alvin Aguayo (hereinafter Aguayo or petitioner) has moved pursuant to CPLR Article 78 for order to compel respondent Eric Gonzalez, Kings County District Attorney (hereinafter DA or respondent) to disclose records pursuant to Public Officers Law § 84 et seq., commonly referred to as the Freedom of Information Law (hereinafter FOIL). The respondent has opposed the petition.

MOTION PAPERS

The petitioner is incarcerated in Orleans Correctional Facility in Albion, New York. The commencement papers consist of an order to show cause, a verified petition, an affidavit of Aguayo, six annexed exhibits labeled A through F, and an affidavit in support of relief pursuant to CPLR 1101(f). Exhibit A is a letter from the petitioner to the DA's office dated September 12, 2021, requesting a copy of the original bill of particulars filed in the matter of People v. Aguayo, Index No. 3140/2008. Exhibit B is a letter from the DA's office to the petitioner dated September 21, 2021 (hereinafter the September 21st Letter). The September 21st Letter acknowledged receipt of the petitioner's letter and advised that the request was being processed and would be determined on or before March 21, 2022. Exhibit C is a letter from the petitioner to the DA's office dated September 25, 2021(hereinafter the Appeal Letter), advising that the petitioner was administratively appealing the respondent's September 21st Letter which the petitioner was treating as a denial of the FOIL request. Exhibit D is a letter from the DA's office to the petitioner dated October 6, 2021 (hereinafter the Appeal Denial Letter). The Appeal Denial Letter advised the petitioner that his administrative appeal was being denied as premature. Exhibit E is a copy of the Court of Appeals decision in the Matter of Data Tree, LLC v Romaine, 9 NY3d 454 [2007]). Exhibit F is a copy of Public Officers Law § 89.

On February 7, 2022, the respondent filed a verified answer and objections in point of law with annexed exhibits labeled A through D. Exhibit A is a copy of the petitioner's letter seeking the original bill of particulars filed in the matter of People v. Aguayo, Index. No. 3140/2008. Exhibit B is a copy of the September 21st Letter. Exhibit C is a copy of the Appeal Letter. Exhibit D is the Appeal Denial Letter.

On February 22, 2023, the Court ordered the respondent to file a supplemental answer on or before March 17, 2023, and the petitioner was to file a response, if any, by April 14, 2023.

On March 17, 2023, the respondents filed a supplemental verified answer and objections in law with annexed exhibits labeled 1 and 2. Exhibit 1 was a letter from the FOIL Record Access Officer of the DA's office to the petitioner dated February 25, 2023. The letter advised the petitioner that in response to the petitioner's FOIL request by the September 21st Letter, the FOIL Record Access Officer of the Kings County District Attorney's office conducted a careful and diligent search to locate the requested original bill of particulars. The FOIL Record Access Officer advised the petitioner that the document could not be located.

The petitioner did not file a response to the supplemental verified answer.

LAW AND APPLCATION

FOIL is an article of Public Officers Law § 87 that allows members of the public to access records of governmental agencies and “imposes a broad duty on government to make its records available to the public” (Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]. To analyze the respondent's failure to provide the petitioner with the complete set of the records, the Court presumes that all government records are open for public inspection and copying, subject to certain exemptions of Public Officers Law § 87 [2] (Verizon New York, Inc. v Mills, 60 AD3d 958, 959 [2d Dept 2009]). The exemptions must be “narrowly interpreted” to guarantee that the public has maximum access to government records (Data Tree, LLC v Romaine, 9 NY3d 454 [2007]). Furthermore, the burden to demonstrate that the requested records indeed qualify for an exemption rest on the agency (id.). To successfully demonstrate such exemption, the agency must provide “a particularized and specific justification for denying access” (Markowitz v Serio, 11 NY3d 43, 45 [2008]).

The petitioner's FOIL request was made by letter dated September 12, 2021, and sought one document, namely, the original bill of particulars filed in the matter of People v. Aguayo, Index No. 3140/2008. Nine days later, the respondent responded to the petitioner's request and advised that it anticipated notifying the petitioner of its decision on or before March 21, 2021.

The petitioner treated the notification as a denial of the petitioner's FOIL request based on the reasoning that locating and providing just one document should not take six months. The petitioner then administratively appealed the September 21st Letter. Thereafter, by letter dated October 6, 2021, the respondent denied the petitioner's appeal as premature.

The first issue raised by the proceeding is whether the respondent's September 21st Letter advising the petitioner that the anticipated date of decision on or before March 21, 2021, constituted a constructive denial of the petitioner's FOIL request.

Generally, an agency must respond to a written request for records within a reasonable time and “there is no specific time period in which the agency must grant access to the records” (Save Monroe Ave., Inc. v New York State Dep't of Transportation, 197 AD3d 808, 809-810 [3rd Dept 2021]), leave to appeal denied, 38 NY3d 905 [2022]; Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 465 [2007]).

The response protocol for an agency to follow is set forth in Public Officers Law § 89(3)(a). An agency must respond within five business days and has various options: to either provide the records, deny the request or, as pertinent here, to “furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied” (Public Officers Law § 89[3][a]). The respondent exercised that third option.

Whether the anticipated response date of March 21, 2021, was reasonable must be gauged under the circumstances of the request (Public Officers Law § 89[3][a]). As set forth in the governing regulation, an assessment of reasonableness requires consideration of “the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency and similar factors” (21 NYCRR 1401.5[d]; Save Monroe Ave., Inc., 197 AD3d at 809-810).

It is undisputed that the respondent acknowledged receipt of the petitioners request within a few days and further that it advised the petitioner that a determination should be expected on or before March 21, 2021. Furthermore, the respondent advised the petitioner that the delay was due to the high volume of requests that have been received and the limited-on site staffing due to the COVID-19 emergency. Under these circumstances, the respondent complied with the timing requirements of Public Officers Law § 89 [3][a] (see Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1075 [3rd Dept 2020]).

The Court finds that the September 21st Letter was not a constructive denial. Consequently, as the respondent correctly contended that the petitioner's commencement of the instant special proceeding on December 6, 2021, was premature. The petitioner did not give the respondent a reasonable time to grant or deny the document request.

On February 22, 2023, the return date for the petition, the respondent apprised the Court that it had conducted a diligent search and was unable to locate the requested document. The Court then ordered the respondent to file a supplemental answer on or before March 17, 2023. The Court further ordered that the petitioner was to file a response by April 14, 2023, if it chose to respond at all. The respondent filed the supplemental answer and on March 17, 2023, duly served the same on the petitioner by regular mail.

The petitioner received notice of the respondent's determination that it could not locate the requested document when it received the supplemental answer. When an agency is unable to locate documents properly requested under FOIL, Public Officers Law § 89 (3) requires the agency to certify that it does not have possession of the requested record or that such record cannot be found after diligent search (Rattley v New York City Police Dep't, 96 NY2d 873, 875 [2001]). The statute does not specify the way an agency must certify that documents cannot be located (id.). Neither a detailed description of the search nor a personal statement from the person who conducted the search is required (id.). Here, the respondent satisfied the certification requirement by averring that it had conducted a diligent search for the document, and it could not locate it (see Matter of Gould, 89 NY2d at 279 [1996]). Moreover, the petitioner took no further action. The petitioner did not move to amend the instant petition, nor did he administratively appeal the February 25, 2022 Determination, nor did he submit any additional responsive papers.

Where a petitioner receives an adequate response to a FOIL request during the pendency of his or her CPLR Article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties (Gannett Satellite Info. Network, LLC, 181 AD3d 1073-1074). The February 25, 2022 Response to the petitioner's FOIL request was adequate and indeed, unchallenged. Accordingly, the petition is hereby dismissed as moot (id.).

CONCLUSION

The verified petition of Alvin Aguayo pursuant to CPLR Article 78 for order to compel respondent, the District Attorney of Kings County to disclose records pursuant to Public Officers Law § 84 et seq. is denied and the petition is dismissed as moot.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.