Pro se petitioner Everton Wagstaffe (Wagstaffe), an inmate currently incarcerated at Greene Correctional Facility in Coxsackie, New York, petitions this court, by order to show cause, for an order directing respondent Jonathan David, Records Access Officer, New York City Police Department (David, RAO, or NYPD as appropriate), to turn over all documentation related to his FOIL requests, or in the alternative, for an order directing in camera inspection of the exempted materials. Respondent cross-moves for an order, pursuant to CPLR 7804 (f) and 3211 (a) (2) and (7), dismissing the petition on the grounds that the sought-after law enforcement records are exempt from disclosure under Public Officers Law § 87 (2) (e) (i), and because petitioner has failed to exhaust his administrative remedies prior to filing the petition. The relevant underlying facts are as follows.

In 1993, Wagstaffe was convicted of kidnapping in the second degree and sentenced to state prison for an indeterminate term of 12½ - 25 years. The crimes for which he was tried and convicted were alleged to have taken place on or about January 1 - 2, 1992 in the area of the 75th Police Precinct in Brooklyn, New York. Asserting that he was wrongfully convicted, petitioner made several attempts, pursuant to the Freedom of Information Law (FOIL) and Public Officer's Law (POL) §§ 84 - 89, to acquire copies of records pertaining to his arrest and conviction.

Petitioner's initial letter-request, dated September 25, 2008, seeks access to:

all entries in the 75th precinct log books, including the homicide squad log book, the RIP Unit log book, police activity log book, the homicide interview log book and the identification room log book concerning [former Det. Michael S. Race, former Det. David Carbone, Tax reg.883607, Det. Jeffrey Wright, Shield No. 3504, and Det. James Curran shield # 590] on the following month, days and year: January 1 through January 8, 1992.

By letter dated October 1, 2008, Wagstaffe made a further request, seeking copies of tapes pertaining to the 911 calls made in connection with his 1992 criminal case.

In November 2008, petitioner received written responses from Sergeant James Russo (Russo) Police Department Legal Bureau of the City of New York, acknowledging receipt of his September 25, 2008 and October 1, 2008 FOIL requests. Russo estimated that Wagstaffe would receive the FOIL Unit's decision on his two requests by January 30, 2009 and February 21, 2009, respectively. He also informed Wagstaffe that if the Unit denied his request, in whole or in part, he would "then be advised in writing of the reason for denial, if any, and the name of the Records Access Appeals Officer. Please be further advised that Associate Investigator Hippolyte (Hippolyte) has been assigned to handle this request, and any further inquiries or correspondence should be addressed to his/her attention."

By April 2009, the correspondence between Wagstaffe and Russo and/or Hippolyte began to cross in the mail. Wagstaffe's letters of April 3, and April 29, requested copies of: (1) all entries made in the 75th precinct's log books of January 2 and 8, 1992, referencing police eyewitness Brunilda Capella; (2) the activity logs of Detectives James Curran (Curran), Jeffrey Wright (Wright), David Carbone (Carbone) and Michael S. Race (Race) for the January 2 - 8, 1992 period, including any interaction or interviews with Brunilda Capella; and (3) the 75th Precinct's Detectives' Movement Log Book pertaining to Detectives Curran, Wright, Carbone and Race for the January 2 - 8, 1992 period. By letter, dated April 26, 2009, Wagstaffe sought to clarify his prior requests. Each of Wagstaffe's letters were addressed to the appropriate recipient, and each included an offer and/or check to cover the costs of the reproduction fees with respect to the sought-after materials.

By letter dated April 20, 2009, Russo informed Wagstaffe that the 911 tapes could not be found because the 1992 911 tapes were kept on record for only 90 days.

By letter dated April 21, 2009, Hippolyte informed petitioner that he would "only receive a redacted Copy of the Command Log for the 75th Pct from Jan 1, 1992 to Jan 8, 1998." Furthermore, that the document:

"is not an eyewitness log of Brunilda Cappella, that is not a RIP log book, it is not an activity log book, it is not a homicide interview log book. It is only the basic activity of the 75 Pct. If you agree to receive ONLY the Command log for the 75th Pct then return the enclosed check as a down [*3]payment for the redacted copies" (emphasis in original).

By letter dated May 1, 2009, Russo informed Wagstaffe that:

"[b]ased on the information you provided, this Unit conducted a diligent search for the following requested document(s) which could not be found: Names of Det. James Curran, Det. Jeffrey Wright, Det. David Carbone and Sgt. Michael S. Race on NYPD Roster, RIP Log 1992. In total, 0 pages have been copied. . . . [no] documents are enclosed.

You may appeal this decision or any portion thereof in writing, within thirty (30) days of the date of this letter, and forward it to: Jonathan David, Records Access Appeals Officer, N.Y.C.P.D. One Police Plaza-Room 1406, NYC 10038-1497" (emphasis in original).

By letter dated May 6, 2009, petitioner sent an appeal to RAO David, appealing (in detail) the decisions of April 20, 2009 and May 1, 2009. It is undisputed that respondent failed to respond to Wagstaffe's timely appeal, or that Wagstaffe timely commenced this Article 78 proceeding to compel respondent's compliance with its obligations under FOIL, and to release the requested materials.

It is well settled that the Legislature enacted FOIL:

"to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy. To achieve this purpose, we have held that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government"

(Matter of Newsday, Inc. v Sise, 71 NY2d 146, 150 [1987], cert denied 486 US 1056 [1988]; internal citations omitted). It is also well settled that an Article 78 proceeding can only be used to review a final determination of a body or office (CPLR 7801 [1]), and that the judicial review is limited to the questions raised in CPLR 7803:

1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or (3) whether the determination was made in violation of lawful procedure, was affected by an error in law, or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken . . . supported by substantial evidence.

Wagstaffe is, apparently, seeking judicial review as to CPLR 7803 subsections (1) and (3), on the grounds that respondent failed to comply with the POL § 89 (4) (a) mandate to respond to his notice of appeal, and, that it is not possible for the requested materials to be missing or not capable of being found if a search for them had, in fact, been conducted. Therefore, it was an abuse of discretion to refuse to accommodate his FOIL requests.

With respect to the parties' dispute over whether Wagstaffe exhausted his administrative remedies prior to commencing his Article 78 petition, the relevant statute, POL § 89 (4) (a), provides that:

"any person denied access to a record may within thirty days appeal in writing such denial to the [*4]head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought ."

(emphasis added). It is undisputed that RAO David being such designated person, did not comply (or arrange to have someone in his stead comply) with this mandate. Petitioner contends that RAO David's failure constitutes a constructive denial of his FOIL requests. Rather than addressing this precise point, respondent cites boilerplate propositions regarding the exhaustion of administrative remedies, and drops a footnote blaming the default on RAO David's summer vacation. The footnote also asserts that petitioner's application for judicial intervention, filed approximately two months after the default, somehow impeded its ability to respond (albeit late) to the FOIL requests.

Respondent's explanations and excuses are unavailing. It was the failure of the RAO to meet its statutory obligations and, within 10 days of receipt, to provide Wagstaffe with a written explanation of the reason(s) for further denial or to provide access to the requested materials, which entitled Wagstaffe to seek relief pursuant to Article 78 (see Matter of Barrett v Morgenthau, 74 NY2d 907 [1989]). Accordingly, there is no basis for a dismissal of the petition under CPLR 3211 (a) (2) or (7).

In both his petition and his May 6, 2009 appeal, Wagstaffe details why he believes the requested materials exist, and explains his understanding as to why access to them is being denied. The only reasons given by Russo and Hippolyte for denying Wagstaffe's FOIL requests were: (1) that 1992 911 tapes were routinely preserved for only 90 days, and (2) that, based on the information provided in the request, the sought-after materials could not be located. Respondent now asserts that POL § 87 (2) (e) (i) exempts the disclosure of otherwise discoverable law enforcement records, where, as here, the sought-after records pertain to an ongoing judicial proceeding (to have Wagstaffe's criminal conviction overturned) and their disclosure might interfere with the proceeding.

When properly raised, the POL § 87 (2) (e) (i) exemption permits a court to conduct an in camera review of the disputed materials:

[A]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions to [POL] § 87 (2) . . . exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption.

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If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material

(Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 - 275 [1996] [internal quotation marks and citations omitted]).

Ordinarily, an issue such as an exemption based on a pending judicial proceeding, which was not raised in the administrative proceeding below, would be unpreserved for review by this court (Matter of Eisland v New York City Campaign Fin. Bd., 31 AD3d 259, 263 - 264 [1st Dept 2006]). However, it is unclear from the parties' submissions exactly when Wagstaffe commenced the (CPL [*5]440) proceeding to have his conviction overturned. Logic would dictate that, if it had not been commenced prior to either the April 20, 2009 or May 1, 2009 denials, respondent could not have made reference to an exemption based upon that proceeding. Respondent's submissions, which include a listing of court dates and/or appearances, do not establish the date the CPL 440 proceeding was commenced, and therefore, do not establish that the POL § 87 (2) (e) (i) exemption could not have been raised at any time prior to the instant cross motion. As a result, the possible exemption under POL § 87 (2) (e) (i) is not properly before this court.

Significantly, respondent no longer advances the grounds originally proffered by Russo and Hippolyte for non-disclosure, and does not dispute a number of petitioner's assertions. It appears that this change in position may have been triggered by petitioner's papers and exhibits which include, among other things: (1) a paper trail with respect to the preservation of the 911 tapes ^[FN1] evidencing that copies had been made and picked up by Det. Wright of the 75th Precinct on January 3, 1992; and (2) newspaper articles delving into the questionable conduct of both Race and Carbone ^[FN2] in the performance of their jobs during the years surrounding Wagstaffe's 1992 arrest, as well as steps taken by members of law enforcement and by Race himself to investigate and remedy the situation (including freeing innocent men convicted by tainted evidence).

Under these circumstances, the pro-forma denials of Russo and Hippolyte cannot be considered adequate. The RAO must comply with POL § 89 (4) (a), and provide a full explanation "in writing to the person requesting the record the reasons for further denial" especially where, as here, petitioner has articulated "a demonstrable factual basis to support his contention that the requested documents existed and were within the Police Department's control" (Matter of Gould v New York City Police Dept., 89 NY2d at 279). [*6]

Accordingly, it is

ADJUDGED that the Article 78 petition is granted to the extent of remitting the matter to respondent Records Access Officer of the New York City Police Department for reconsideration of petitioner's FOIL applications in accordance with this opinion; and it is further

ORDERED that the cross motion is denied.

Dated: February 22, 2010

ENTER:

___________________________

Hon. Joan M. Kenney

J.S.C.