| Matter of Reynolds v Queens County Bd. of Elections |
| 2009 NY Slip Op 51683(U) [24 Misc 3d 1231(A)] |
| Decided on July 28, 2009 |
| Supreme Court, Bronx County |
| Thompson, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
In the Matter of the
Application of James Reynolds, Petitioner,
against Queens County Board of Elections, et al., Respondents. |
Respondents', NEW YORK CITY BOARD OF ELECTIONS ("BOARD"),[FN1] NEW YORK DIVISION OF VETERANS' AFFAIRS ("VETERANS") and BRONX COUNTY DISTRICT ATTORNEY ("DA"), request to dismiss the Amended Verified Petition in its entirety, and Petitioner JAMES J. REYNOLDS's request for an Order directing disclosure of the requested records pursuant to Freedom of Information Law (FOIL)[FN2], and judicial review of the Respondents' alleged denials of his purported FOIL requests are consolidated for decision herein.
Respondents' request for an Order dismissing the Amended Verified Petition is granted for
the reasons stated below.
Petitioner's request for an Order directing disclosure of the requested records and
judicial review of Respondents alleged denials of his purported FOIL requests are denied as to
all Respondents.
[*2]
Petitioner seeks to compel production of certain items
and information pursuant to his February 10, 2008 FOIL request. Petitioner alleges he submitted
requests for records to, among others, the New York City Board of Elections, Bronx County
District Attorney's Office and the New York State Veteran Affairs Division c/o VA Medical
Center, pursuant to FOIL, see NY Pub. O. Law § 85 et seq. Petitioner further
challenges the various denials of his purported FOIL requests by the above-named Respondents.
The parties appeared for a hearing on May 15, 2009, pursuant to this Court's decision and order
of April 10, 2009, to present their respective arguments.
J.S.C.
The people's right to know the process of governmental decision-making and to
review the documents and statistics leading to determinations is basic to our society, NY Pub. O.
Law § 84, with reasonable limitations, see NY Pub. O. Law § 87(2); see
also Arzuaga v. NYCTA, 73 AD2d 519. FOIL was not intended, however, to afford a new
research tool to private litigants in matters not affected by public interest. See D'Alessandro
v. Unemployment Ins. Appeal Bd., 56 AD2d 762, 763; Brady & Co. v. City of NY,
84 AD2d 113, 115. It is fundamentally designed to inform the public about agency action and
not to benefit private litigants. See NLRB, et al. v. Sears, Roebuck & Co., 421 U.S. 132,
144.
FOIL defines "records" as:
[A]ny information kept, held, filed, produced or reproduced by, with or for an
agency or the state legislature, in any physical form whatsoever including, but not limited to,
reports, statements, examinations, memoranda, opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes
or discs, rules, regulations or codes.
NY Pub. O. Law § 86(4).
Additionally,
Each entity subject to the provisions of this article, within five business days of the
receipt of a written request for a record reasonably described, shall make such record
available to the person requesting it, deny such request in writing or furnish a written
acknowledgment 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, including, where appropriate, a statement that access to the record will be determined in
accordance with subdivision five of this section.
NY Pub. O. Law § 89(3)(a) (emphasis added).
[*3]
Furthermore, [n]othing in this article shall be
construed to require any entity to prepare any record not possessed or maintained by such entity
except the records specified in subdivision three of section eighty-seven and subdivision three of
section eighty-eight of this article. NY Pub. O. Law § 89(3)(a).
NYC BOARD OF ELECTIONS
Petitioner concedes that his FOIL request to the BOARD was "in the form of []
question[s]." (Tr. at 7:1.) As such, the BOARD contends that it was unsure as to how to
respond to his request. (Id. at 9:19-23.) The BOARD further claims that since Petitioner
requested answers to questions—rather than requests for information—it was
neither arbitrary nor capricious for it not to provide a response. (Id. at 14:4-8); see
also NY Pub. O. Law § 89(3)(a). Despite this stance, however, the BOARD provided
Petitioner with records, consisting of copies of his basic voting information, his voting history,
his registration record, and his voter registration form. (Id. at 10:4-9.)
BRONX COUNTY DISTRICT ATTORNEY'S OFFICE
The DA claims that Petitioner's request fails to reasonably describe the records he is
seeking sufficient enough for them to locate, identify and provide the documents sought.
(Id. at 16:17-25; 17:16-20); see also NY Pub. O. Law § 89(3)(a). As such,
the DA provided Petitioner with an opportunity to submit a more specific request, which he
failed to do. (Id. at 17:3-4.) The DA further argues—and this Court
agrees—that Petitioner's request may be construed as a request for information regarding a
possible investigation, as opposed to a search for existing records. (Id. at 17:20-25.)
Consequently, it is the DA's position that such records are compiled for law enforcement
purposes, which, if disclosed, would interfere with ongoing investigations. (Id.)
Indeed,
An agency may deny access to records that are compiled for law enforcement
purposes and which, if disclosed, would interfere with law enforcement investigations or judicial
proceedings; deprive a person of a right to a fair trial or impartial adjudication; identify a
confidential source or disclose confidential information relating to a criminal investigation; or
reveal criminal investigative techniques or procedures.
NY Pub. O. Law § 87(2)(e). Therefore, just as the DA has posited, regardless
of whether Petitioner's request to the DA was more specific, the requested information would be
exempt from disclosure under FOIL.
NY STATE VETERAN AFFAIRS DIVISION
[*4]
Petitioner "request[ed] any records concerning
the New York State Division of Veterans Affairs Office and the Bronx VA Medical Center,"
which, presumably, related to him. (Tr. at 20:4-7.) VETERANS claims that a search was
conducted and no records were found that would be responsive to Petitioner's request, and that
two affidavits attesting to such were provided to Petitioner. (Id. at 25:5-13.) VETERANS
also responded to Petitioner's request by letter, wherein it reiterated that the requested documents
could not be found despite a diligent search, which was proper under FOIL. See NY Pub.
O. Law § 89(3); see also Rattley v. NYPD, 96 NY2d 873 (holding that "[w]hen an
agency is unable to locate documents properly requested under FOIL, NY Pub. O. 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") (citations omitted).
CERTIFICATION
Despite the Respondents' efforts to appease Petitioner, he maintains that
Respondents have not provided him with certifications that a diligent search has been conducted
for his requested records as required by FOIL. (Tr. at 18:19-24; 22:10-15; 27:2-4;
28:3-5.) The BOARD counters that certification is not required because Petitioner's request was
improper and because they provided whatever records they did have in their possession
regarding Petitioner. The DA contends that they are not required to provide a certification
because they were unable to perform a search based on Petitioner's vague description and
because what could be discerned from Petitioner's request amounted to a request for a possible
law enforcement investigation—which he is not entitled to receive. Finally, VETERANS
actually provided Petitioner with two affidavits and a letter certifying that a search was
conducted and no records were found.
Hence, despite Petitioner's dissatisfaction with Respondents' representations,
"[FOIL] does not specify the manner in which an agency must certify that documents cannot be
located. Neither a detailed description of the search nor a personal statement from the person
who actually conducted the search is required." Rattley, 96 NY2d at 875.
Furthermore, counsel for each Respondent stated on the record—and in open
court—that as diligent a search as could be conducted based on the substance of
Petitioner's request was done, and that either the results of said search, or the reason why a
search was not conducted, was forwarded to the Petitioner. Since the statute does not specify the
manner in which an agency must provide certification, this Court finds that counsels'
affirmations, along with the abovementioned affidavits, responses and correspondences provided
to Petitioner, meet FOIL's certification requirement.
Certify means 1. To give certain knowledge or information of; make evident; vouch
for the truth of; attest. 2. To make statement to as matter of fact. . . . [Additionally,] any action or
conduct, which is sufficient to create upon the mind a distinct impression of [*5]fact conducive to action, is a representation. It accordingly follows
that to allege that the defendant certified' significantly asserts that more than a mere
representation was made.
Mutual Ventures, Inc. v. Barondess, 17 Misc 2d 483, 485 (citations omitted).
The foregoing shall constitute the decision and order of this Court.
Dated: _________________
APPEARANCES:
JAMES REYNOLDS, PRO SE
Robert T. Johnson
The Office of the District Attorney
198 Grand Concourse
Bronx, New York 10451
BY:RAFAEL CURBELO, ESQ.
GAVIN SMITH, ESQ.
Assistant Attorney General
New York City Law Department
New York City Board of Elections
100 Church Street
New York, New York 10007
BY:ANDREW RAUCHBERG, ESQ.
Footnote 1:
Petitioner
improperly named the "Queens County Board of Elections," the "Kings County Board of
Elections," the "Richmond County Board of Elections," the "New York County Boards of
Elections," and the "Bronx County Board of Elections" as respondents in this action. No such
entities exist. The New York City Board of Elections applies to all five boroughs of New York
City.
Footnote 2:
Petitioner is no
stranger to such proceedings, having "submitted requests to 93 U.S. Attorney's offices in
February 2007," which were subsequently consolidated by the Executive Office for United
States Attorneys and dismissed by the Southern District. (See Reynolds v. Attorney General
of the United States of America, NYLJ, July 14, 2009, at 35, col. 3.)