DeFreitas v. New York State Police Crime Lab

Appeal from an order and judgment of the Supreme Court (McGrath, J.), entered October 21, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]), petitioner, a prison inmate, submitted a written request to respondent on April 4, 2014 for documents associated with DNA testing relating to his convictions for which he is imprisoned (see People v DeFreitas, 116 AD3d 1078 , 1078-1079 [2014], lv denied 24 NY3d 960 [2014]). After receiving no response from the Record Access Officer, petitioner filed an administrative appeal claiming that his request had been constructively denied. After petitioner’s administrative appeal went unanswered, he commenced this CPLR article 78 proceeding seeking to compel a response from respondent. Following the commencement of this proceeding, respondent advised petitioner that 1,356 pages of records responsive to his request would be sent to him upon payment of the statutory copying fee (see Public Officers Law § 87 [1] [b] [iii]). Petitioner was further advised that a diligent search failed to find records related to his request for documentation concerning “Corrective Action for Discrepancies and Errors” and “Error Rates” and that the remaining records sought were exempt from disclosure because such records were compiled for law enforcement purposes and disclosure thereof would

Initially, respondent concedes, and we agree, that the exception in Public Officers Law § 87 (2) (e) (i) no longer applies because petitioner’s criminal proceedings and judicial review have concluded (see Matter of Lesher v Hynes, 19 NY3d 57 , 68 [2012]; Matter of Pittari v Pirro, 258 AD2d 202 , 206-207 [1999], lv denied 94 NY2d 755 [1999]). To that end, respondent has advised petitioner that it would review and release any remaining records covered by his request subject to redaction under Civil Rights Law § 50-b and payment of the statutory copying fee (see Public Officers Law § 87 [1] [b] [iii]). Accordingly, we conclude that petitioner’s challenge to respondent’s withholding of documents compiled for law enforcement purposes that were previously exempted from disclosure is moot (see Matter of Rattley v New York City Police Dept., 96 NY2d 873 , 875 [2001]; Matter of Saxton v New York State Dept. of Taxation & Fin., 107 AD3d 1104 , 1105 [2013]).

Turning to the balance of petitioner’s documentary requests, we disagree with petitioner that Supreme Court erred in dismissing his petition as moot. 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 (see Matter of Rattley v New York City Police Dept., 96 NY2d at 875 ; Matter of Scott v Shepard, 231 AD2d 759 , 760 [1996], lv denied 89 NY2d 858 [1996]; Matter of Davidson v Police Dept. of City of N.Y., 197 AD2d 466 , 466 [1993]; see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707 , 713-715 [1980]). As relevant here, “[w]hen 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 a requested record or that such record cannot be found after diligent search” (Matter of De Fabritis v McMahon, 301 AD2d 892 , 893 [2003] [internal quotation marks, brackets and citation omitted]; see Matter of Rattley v New York City Police Dept., 96 NY2d at 875 ).

Here, respondent advised petitioner in writing that records matching portions of his request had been found and would be sent to him after he paid the statutory copying fee and that a diligent search of respondent’s files failed to uncover records

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.

Ordered that the order and judgment is affirmed, without costs.