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Barrett v. Morgenthau

74 N.Y.2d 907 Court N.Y. Decision date 1989-11-16 English

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p. 907
In the Matter of Michael Barrett, Respondent, v Robert M. Morgenthau, as District Attorney of New York County, et al., Appellants.
Argued October 18, 1989;
decided November 16, 1989
p. 908
APPEARANCES OF COUNSEL
Robert M. Morgenthau, District Attorney (Morrie I. Kleinbart and Marc Frazier Scholl of counsel), appellants pro se.
Robert Selcov, Deborah Schneer and David C. Leven for respondent.
p. 909
OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

Petitioner commenced this article 78 proceeding to compel production of certain documents after his Freedom of Information Law request, initially directed to the District Attorney, was denied in a letter signed by the District Attorney’s records access officer. Inasmuch as the District Attorney failed to advise petitioner of the availability of an administrative appeal in the office (see, 21 NYCRR 1401.7 [b]) and failed to demonstrate in this proceeding that procedures for such an appeal had, in fact, even been established (see, Public Officers Law § 87 [1] [b]), he cannot be heard to complain that petitioner failed to exhaust his administrative remedies.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, without costs, in a memorandum.

Statutes and regulations cited