An individual [Petitioner] had made numerous requests to the County District Attorney's Office [Respondent] pursuant to the Freedom of Information Law [FOIL] for copies from the negatives of crime scene photographs related to his criminal case. Not receiving any response to his FOIL request,* Petitioner eventually commenced a CPLR Article 78 proceeding seeking to compel the Respondent to produce the photographs. Supreme Court dismissed the petition based on the Respondent's certification that the requested records could not be located and Petitioner appealed.
The Appellate Division affirmed the lower court's decision, explaining that in the event the custodian of the record or records sought is unable to locate documents properly requested pursuant FOIL, Public Officers Law §89(3) requires the custodian to certify that it does not have possession of the requested record or the record cannot be found "after diligent search."**
However, said the Appellate Division, "even where an entity properly certifies that it was unable to locate requested documents after performing a diligent search, the person requesting the documents may nevertheless be entitled to a hearing on the issue where he or she can 'articulate a demonstrable factual basis to support the contention that the requested documents existed and were within the entity's control.'"
In this instance Petitioner did not establish his entitlement to a hearing as FOIL only requires the custodian of the record to provide copies of "any information kept, held, filed, produced or reproduced by, with or for the [Respondent]." Although Petitioner submitted a police department property report that listed a roll of film, the court said that nothing in the record indicates that the roll of film or any photographs that may have been developed therefrom were ever in Respondent's possession.
Citing Gould v New York City Police Dept., 89 NY2d at 279, the Appellate Division held that as Respondent had adequately certified that "no requested documents could be found after a diligent search," the Supreme Court had properly dismissed the Petitioner's Article 78 action.
* Public Officers Law §89[4][a] provides that a failure to respond is deemed a constructive denial of a Freedom of Information Law request.
** The statute, however, does not specify the manner in which an agency must certify that documents cannot be located and neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required.
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