Petitioner Domingo Espiritu commenced this Article 78 proceeding representing himself to reverse the District Attorney's denial of his Freedom of Information Law (FOIL) request for certain documents related to his criminal conviction. Respondent District Attorney of New York County (DANY) has opposed on the ground that it properly denied Espiritu's request based on several exemptions permitted under FOIL.

Background Facts

Petitioner Domingo Espiritu is incarcerated in state prison on convictions of second-degree murder, first-degree assault, second-degree weapon possession, and two counts of second-degree assault. (Verified Ans., ¶2). Mr. Espiritu filed a FOIL request with DANY's Records Access Officer seeking approximately 64 categories of documents pertaining to his criminal case by letter dated March 19, 2012. (Answer, Exh A).^[FN1] Mr. Espiritu divided his request [*2]into three parts as follows: Part One Specific Requests, Part Two Discovery Materials, and Part Three Specific Request. Although Mr. Espiritu did not explain what he intended by these titles, it appears that Part One relates to the police investigation, Part Two relates to documents connected with his trial, and Part Three asks DANY to provide him with certain information, such as the name of the agency in possession of particular documents, should DANY be unable to fulfill his request.

Assistant District Attorney Laura Greenberg informed Mr. Espiritu in a letter dated April 13, 2012 that she had received his request and was reviewing nine boxes of documents in order to respond. (Exh B). She added that she would update him on the status of her work on or before May 11, 2012. In a similar letter dated May 10, 2012, she wrote that processing Mr. Espiritu's request had taken longer than expected and she would render a determination or provide an update by June 4, 2012. (Exh C). On May 14, 2012, Mr. Espiritu appealed, apparently deeming the delay a constructive denial of his request. (Exh D). On May 29, 2012, ADA Susan C. Roque denied Mr. Espiritu's appeal because ADA Greenberg had informed him in her May 10, 2012 letter that she was still evaluating his voluminous request. (Exh E).

In a letter dated June 1, 2012, after detailing Mr. Espiritu's "heinous crimes" which involved a shooting at a public pool, ADA Greenberg granted one aspect of Mr. Espiritu's FOIL request but denied it in substantial part. (Exh F). The ADA granted the request for documents in category 3 of Part Two and provided 6 pages of Defendant's Omnibus Motion which his attorney had made at his criminal trial and 8 pages of the People's Affirmation in Response to the Defendant's Omnibus Motion. Everything else was denied in reliance on specific exemptions from FOIL in the Public Officers Law.

The ADA denied categories 1-4, 6-9, 12, 14, 17, and 23 from Part One of Mr. Espiritu's request and categories 1, 4-6, 8-26, 34, 36, and 40 from Part Two on the ground that the documents had already been provided to Mr. Espiritu's attorney during his criminal trial. Relying on Moore v Santucci, 151 AD2d 677 (2nd Dep't 1989), the ADA asserted that FOIL "does not require the District Attorney to provide duplicates of that which was previously provided." (Exh F). The ADA included copies of the lists of documents that had been provided to Mr. Espiritu's counsel at trial to prove that the documents had, in fact, been previously provided. (Exh G).

The ADA articulated a second ground for denying these documents, stating that "to the extent that these documents contain witness statements, they are covered by the public interest privilege." (Exh F). Citing cases such as Sanchez v City of New York, 201 AD2d 325, 326 (1st Dep't 1994),the ADA stated that the purpose of this privilege was to enable governmental entities to encourage witnesses to come forward and cooperate with investigations without fear of reprisal. Additionally, citing Johnson v Hynes, 264 AD2d 777 (2d Dep't 1999), the ADA asserted that: "Statements of non-testifying witnesses are confidential and not discoverable under F.O.I.L."

The ADA denied a second group of documents, including categories 5, 10-11, 13, 14, 16, 18-22, and 24 from Part One of Mr. Espiritu's request and categories 7, 33, 35, and 37-39 from Part Two, on the ground that "no such document exists in the case file." Citing to Public Officers Law §86(4) and 89(3), ADA Greenberg stated that: "The District Attorney's Office cannot provide documents that do not exist or that we do not possess."

ADA Greenberg denied Mr. Espiritu's request for autopsy reports and related items in categories 27-32 from Part Two, citing County Law §677 and New York City Charter §557 and asserting that the requested items were "exempt from disclosure by operation of law." (Exh F). [*3]

Finally, ADA Greenberg denied category 16 from Part One and category 2 from Part Two, interpreting the requested documents to consist of court transcripts. ADA Greenberg cited Matter of Roque v Kings County District Attorney's Office, 12 AD3d 374 (2nd Dep't 2004) and Moore v Santucci, supra, stating that: "The respondent is not required to make available for inspection or copying any suppression hearing or trial transcripts of a witness' testimony in its possession, because the transcripts are court records not agency records."

On June 21, 2012 Mr. Espiritu appealed ADA Greenberg's substantial denial of his request. (Exh H). Noting that Greenberg had "blatantly delved into an emotional litany of details pertaining to this case," Mr. Espiritu claimed that the ADA was biased against him based on the nature of his crimes. Additionally, he explained that he had been unable to obtain any of the documents from his trial counsel David Blackstone, as Mr. Blackstone had passed away and no one in his office was available to assist him.

Not having received any response to his appeal, Mr. Espiritu commenced the instant Article 78 proceeding in or about October of 2012, alleging that his FOIL appeal had been constructively denied because more than 60 days had passed and he had not received a determination. (Affidavit in Support of Order to Show Cause, ¶5). By letter dated November 14, 2012, before respondent filed an Answer in this proceeding, ADA Susan Roque decided Mr. Espiritu's appeal. (Exh I). Respondent's counsel then adopted ADA Roque's determination in her Answer filed in this proceeding with this Court.

In her November 14 determination, ADA Roque began by noting — incorrectly — that Mr. Espiritu had not asserted any grounds for his appeal; as his assertion of bias had been stated only briefly at the end, after Mr. Espiritu reiterated all 64 categories of his demand in detail, the ADA may have overlooked that information. She then upheld ADA Greenberg's determination in its entirety and added additional grounds supporting the denial of some of the documents.

ADA Roque affirmed the denial of certain documents on the ground that they had been previously provided to Mr. Espiritu's trial counsel as part of the approximately 250 pages produced during discovery. The ADA had no duty to provide duplicates, she claimed. She further affirmed the secondary ground for denial of witness statements on the ground that they "are protected under the public interest privilege and/or confidential." She emphasized the need to protect the privacy and safety of cooperating witnesses and indicated that the duty to disclose such documents at trial did not undermine the exemption from disclosure under FOIL.

ADA Roque next upheld ADA Greenberg's denial of petitioner's request for autopsy reports on the ground that such documents were exempt from disclosure under FOIL and also because they had been previously provided at Mr. Espiritu's trial.

To the extent Mr. Espiritu had requested trial transcripts, ADA Roque stated that the request had been properly denied, and she added her own rationale. She confirmed that the file contained a hearing transcript and grand jury transcripts, but asserted that both were exempt from disclosure under FOIL. The hearing transcripts contained witness statements that were "protected by the public interest privilege, and, as such, not subject to disclosure absent a showing of a compelling and particularized need. Kassebaum v Morgenthau, 270 AD2d 71 (1st Dept. 2000)." Citing CPL §190.25(4), Penal Law §215.70, and cases such as Newton v District Attorney of Bronx County, 186 AD2d 57 (1st Dept. 1992) and Matter of Lungen v Kane, 217 AD2d 849, 850 (3rd Dept. 1995), aff'd 88 NY2d 861 (1996), she asserted that the disclosure of grand jury proceedings was prohibited by law, absent an order from the judge with supervisory authority over the grand jury proceedings. [*4]

Regarding the significant number of documents denied because they had not been located in the case file, ADA Roque agreed with ADA Greenberg's statement that the agency could not provide that which it did not possess or which did not exist. With regard to Mr. Espiritu's assertion that he could not obtain any documents from his lawyer, she indicated that the "statement, not in evidentiary form, is insufficient to require duplicative disclosure of documents already provided."

Discussion

Here, DANY has not met its burden of establishing that all of the requested documents it denied are exempt from disclosure under FOIL. Public records are presumptively open to the public, unless they fall under one of the enumerated exemptions listed in Public Officers Law §87(2). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access." Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 (1986),citing Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 80 (1984); Matter of Fink v Lefkowitz, 47 NY2d 567, 571 (1979).

DANY's refusal to provide certain documents on the ground that the documents had been previously provided lacks merit. The documents denied on that ground were those listed in categories 1-4, 6-9, 12, 14, 17, 23 from Part One of Mr. Espiritu's request and categories 1, 4-6, 8-26, 34, 36, 40 from Part Two. DANY has cited Moore v. Santucci for the proposition that an agency is not compelled to provide duplicate copies of documents previously provided. However, the relevant language from Moore (at p 678)establishes that the records Mr. Espiritu requested are not automatically exempt from disclosure merely because they were provided to his attorney:

The mere fact that disclosure was available to the applicant through some other discovery device, such as CPL article 240 in a criminal proceeding, does not ipso facto preclude FOIL relief if warranted .... However, if the petitioner or his attorney previously received a copy of the agency record pursuant to an alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under FOIL for a duplicate copy as academic. However, the burden of proof rests with the agency to demonstrate that the petitioner's specific requests are moot. The respondent's burden would be satisfied upon proof that a copy of the requested record was previously furnished to the petitioner or his counsel in the absence of any allegation, in evidentiary form, that the copy was no longer in existence. In the event the petitioner's request for a copy of a specific record is not moot, the agency must furnish another copy upon payment of the appropriate fee ... unless the requested record falls squarely within the ambit of 1 of the 8 statutory exemptions.

(Citations omitted, emphasis added).

Under Moore, DANY has not met its burden of establishing that Mr. Espiritu's request is moot because Mr. Espiritu asserted that he does not "currently possess" the documents and he is unable to get them from his former counsel, David Blackstone, who is now deceased. To the extent that DANY claims that Mr. Espiritu's assertions are insufficient in that they are not "in evidentiary form," the claim is unavailing. Mr. Espiritu's initial FOIL appeal contained his notarized statement that he had been unable to obtain any records from Mr. Blackstone's office because the attorney had passed away. The assertion is reiterated in Section B of the Memorandum of Law accompanying his Verified Petition. Thus, Mr. Espiritu has satisfied the [*5]requirements under Moore and DANY has an obligation to provide duplicate documents absent another exemption.

DANY relies on the "public interest privilege" as a second ground to deny those documents. Specifically, ADA Greenberg's denial stated that "to the extent" the documents in categories 1-4, 6-9, 12, 14, 17, 23 from Part One and categories 1, 4-6, 8-26, 34, 36, 40 from Part Two, contain witness statements, they are exempt from disclosure by the public interest privilege. The affirmance by ADA Roque was equally broad and conclusory. However, such "blanket exemptions" are not permitted under FOIL. See, e.g., Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 (1st Dep't 2013), citing Matter of Gould v New York City Police Dept., 89 NY2d 267 (1996). The application of the claimed exemption to a particular document must be justified with some specificity

What is more, the Public Officers Law does not include a "public interest" exemption among the various exemptions listed in the statute. To the extent such an exemption is recognized in case law, the courts tend to equate it with the "public safety" exemption in Public Officers Law §87(2)(f), which permits an agency to deny access to records that "if disclosed would endanger the life or safety of any person." Johnson v. New York City Police Dept., 257 AD2d 343, 349-350 (1st Dep't 1999), lv to appeal dismissed, 94 NY2d 791. While acknowledging respondent's claim that a common-law privilege might also exist if disclosure would be contrary to the public interest,the Johnson court emphasized its limitation, stating that: "In any event, respondents' argument, that the public interest privilege creates a broader shield than FOIL by placing the burden on petitioner to demonstrate that it has a compelling and particularized need for the information that outweighs the potential harm to the public good assertedly demonstrated by respondents, is untenable." Id.

However the alleged public interest privilege for witness statements may be defined, it has no relevance to many of the documents requested by Mr. Espiritu, as those documents do not contain witness statements. For example, Mr. Espiritu's request for the audio recording of a radio call between police officers does not constitute a witness statement. (Exh. A, Part 1, category 2). Therefore, the blanket denial of the requested documents on the ground that they are protected under the public interest privilege fails to meet the particularity required for an exemption under FOIL. Should DANY continue to assert an exemption on that ground, it must assess the documents in a meaningful way and specify which, in fact, contain witness statements and which, if revealed, would potentially jeopardize the safety of the witness or the public interest.

DANY's denial of documents on the ground that they "do not exist in the case file" suffers from a similar deficiency. While an agency cannot be required to produce documents that do not exist or that cannot be found after a diligent search, it is unclear from DANY's response whether a particular document was never created and thus never existed, or whether instead it most likely existed but simply could not be located. To the extent that a document which existed cannot be located, the agency must certify that it conducted a diligent search. Rattley v NY City Police Dep't., 96 NY2d 873 (2001) Here, DANY's claim that the documents "do not exist in the case file" neither provides clarity, nor satisfies the diligent search requirement. Therefore, without more, the denial of disclosure fails.Mr. Espiritu properly challenges DANY's refusal to disclose autopsy reports and related documents on the basis that the disclosure is prohibited by operation [*6]of law; that is, New York City Charter §577 and County Law §677. While the cited Charter provision states that autopsy reports are not generally available for public inspection, County Law §677(3)(b) provides that: "Upon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, or upon application of any person having a substantial interest therein, an order may be made by a court of record, or by a justice of the supreme court, that the record of that investigation be made available for his inspection, or that a transcript thereof be furnished to him, or both." Mr. Espiritu is currently incarcerated for murder, and the autopsy reports he requested contain information relevant to his conviction. Therefore, Mr. Espiritu qualifies as a person who "may be affected" in a criminal proceeding by the contents of the autopsy reports. Indeed, ADA Roque asserted that the autopsy reports and related documents were among the documents previously provided at Mr. Espiritu's criminal trial. (Exh. I). Therefore, the claimed exemption now must fail.

DANY properly denied Mr. Espiritu's request for hearing transcripts and grand jury minutes. Because those records were prepared by the court and not by the agency, FOIL does not require their production, even if copies exist in the agency's files. See, Moore, 151 AD2d at 679.

Accordingly, it is hereby

ADJUDGED that the Article 78 petition is denied insofar as it challenges respondent's refusal to disclose transcripts of court proceedings; and it is further

ADJUDGED that the petition is granted to the extent of annulling respondent's denial of the requested autopsy reports, and respondent is directed to provide those documents in exchange for the payment of the appropriate fee; and it is further

ADJUDGED that the petition is granted to the extent of annulling respondent's determination that certain documents are exempt from disclosure on the ground that they were previously provided; and it is further

ORDERED AND ADJUDGED that the matter is remanded for further processing and a new determination as follows:

To the extent that respondent's denial is based on the ground that the documents include witness statements protected by the public interest privilege, respondent shall identify which documents, in fact, contain witness statements and shall further explain with some specificity its justification for the claimed privilege; and

To the extent that respondent's denial is based on the ground that the documents "do not exist in the case file," respondent shall clarify which documents were never created and never existed and which presumably existed at one time but could not now be located. Respondent shall also provide a certification of a diligent search if relying upon the latter ground.

Respondent shall render a new determination consistent with the terms of this decision within thirty (30) days of the entry of this decision and order. Should Mr. Espiritu wish to challenge any aspect of the new determination, he shall be obligated to timely commence a new Article 78 proceeding.

Dated: April 12, 2013

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J.S.C.