The application by pro se petitioner for an order pursuant to CPLR Article 78, reversing respondent's implicit final determination, which denied the October 3, 2012 appeal of petitioner's June 12, 2012 Freedom of Information Law ("FOIL") request, is denied as to requests 2-4. Respondent is directed to produce to this court copies of any records, documents, memoranda, reports or other materials responsive to request 1 for an in camera inspection within thirty days from service of a copy of this order with notice of entry.

In 1988, petitioner was convicted after a jury trial in Albany of the crimes of murder in the second degree (two counts), robbery in the first degree (two counts), burglary in the first degree (two counts) and criminal possession of a weapon in the second degree. Petitioner is currently serving an indeterminate term of seventy-one and two-thirds years to life. Petitioner unsuccessfully appealed his convictions. Petitioner argued on appeal, inter alia, that at trial evidence impeaching Eric Harris a/k/a Eric Smith ("Harris"), a victim of the robbery and a witness to the entire crime, should have been admitted and that Harris' pretrial identification of petitioner should have been excluded. See People v. Riley-James, 168 AD2d 740 (3d Dept 1990), appeal denied 77 NY2d 966 (1991); Riley-James v. Portuondo, 70 Fed Appx 36 (2d Cir. 2003), cert denied 541 US 948 (2004). Petitioner continues to argue in the instant proceeding that he was wrongfully convicted.

More than two decades later, petitioner submitted a FOIL request dated June 12, 2012 (the "request") to the New York County District Attorney's Office ("DANY") seeking information about Harris. Petitioner requested that respondent send him "a copy of the following records, documents, memoranda, reports or other materials in [People v. Eric Harris, Ind. 5880-87]: 1) Arrest reports; 2) DD5s; 3) Arrest photo; 4) Complaint Follow-up reports." [*2]

On September 24, 2012, the Records Access Officer denied access to all documents sought in the request (the "denial"). The Records Access Officer included the background of petitioner's criminal conviction as a framework for her determination of the request. Requests 1-4 were denied pursuant to the personal privacy exemption. Public Officers Law §§ 87 (2) (b) & 89 (2) (c) (iii). The Records Access Officer went on to provide additional grounds for the denial of requests 2-4 with more particularized and specific reasoning. Request 2 for the DD5s and request 4 for the complaint follow-up reports were denied because the DANY did not possess those documents in its files. Public Officers Law § 89 (3). Request 3 for the arrest photo was denied because it was compiled for law enforcement purposes only pursuant to the inter-agency exemption. Public Officers Law § 87 (2) (g).

On October 3, 2012, petitioner appealed the denial (the "appeal"). Petitioner argued, inter alia, that the denial was a blanket denial and that the documents he requested regarding the Harris case were unrelated to the circumstances leading to his conviction. On November 15, 2012, petitioner sent another letter reminding the DANY that it was required to answer the appeal within ten business days and that a failure to respond constitutes an implicit final denial. See Public Officers Law § 89 (4) (a); Council of Regulated Adult Liq. Licensees v. City of NY Police Dept., 300 AD2d 17 (1st Dept 2002).

The instant Article 78 proceeding was commenced on December 17, 2012 by order to show cause. Subsequently, on January 14, 2013, respondent formally denied the appeal (the "appeal denial") in a more carefully reasoned determination. This court notes that it would be improper to consider the appeal denial because it is outside the administrative record, having been "tendered after the expiration of the 10-day administrative appeal response period, and after the commencement of the article 78 proceeding." Matter of Molloy v. New York City Police Dept., 50 AD3d 98, 100, 2008 NY Slip Op 01090 (1st Dept 2008, Catterson, J. concurring in part and dissenting in part). Moreover, this court agrees with the concurrence in Matter of Molloy that a remand is not necessary and that an in camera inspection of the requested documents is more fitting where necessary. "An in camera inspection of the documents [will] determine if redaction [can] strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed." Matter of Thomas v. New York City Dept. of Educ., 103 AD3d 495, 2013 NY Slip Op 01026, *4 (1st Dept 2013).

"The purpose of FOIL is to promote open government and public accountability with the law imposing a broad duty on government to make its records available to the public." Matter of Tuck-It-Away Assoc., L.P. v. Empire State Dev. Corp., 54 AD3d 154, 162, 2008 NY Slip Op 06279 (1st Dept 2008); see Public Officers Law § 84. "All records of an agency are presumptively available for public inspection and copying, unless they fall within one of [the Public Officers Law § 87 (2)] exemptions." Matter of M. Farbman & Sons v. New York City Health & Hosps. Corp., 62 NY2d 75, 80 (1984). "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), see Matter of [*3]Bahnken v. New York City Fire Dept., 17 AD3d 228, 2005 NY Slip Op 03122 (1st Dept 2005). "Access to government records does not depend on the purpose for which the records are sought." Matter of Gould v. New York City Police Dept., 89 NY2d 267, 274 (1996).

First, turning to requests 2 and 4 for the DD5s and complaint follow-up reports, this court takes judicial notice of the fact that complaint follow-up reports are commonly referred to as DD5s. Therefore, it appears that requests 2 and 4 are for the same documents. Requests 2 and 4 were denied on the ground that these documents did not exist in the DANY's file.

The exemption for documents "not possessed or maintained" by an agency is clear cut. Public Officers Law § 89 (3) (a). However, less obvious is how an agency "shall certify that it does not have possession of such record or that such record cannot be found after diligent search." Id. "The statute 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." Matter of Rattley v. New York City Police Dept., 96 NY2d 873, 875 (1st Dept 2001). However, something more than a bare-faced allegation is necessary to certify that an agency does not possess a record, such as an affidavit averring that a "diligent search" of the agency's files was conducted and that the requested documents were not found. Matter of Lugo v. Galperin, 269 AD2d 338, 338 (1st Dept 2000); see Matter of Curro v. Capasso, 209 AD2d 346 (1st Dept 1994).

The papers before this court lack any supporting affidavits from respondent to certify that the DANY performed a diligent search for the requested documents but could not find them. In addition, sufficient certification is not provided by the allegations in the denial that the DANY does not possess the requested documents. However, respondent's verified answer does assert that the requested documents did not exist in the DANY's files. Accordingly, this court finds that respondent has sufficiently certified, on the strength of the verified answer, that it does not have the DD5s or complaint follow-up reports requested by petitioner.

Second, request 3 for the arrest photo was properly denied as a document compiled for law enforcement purposes only and to protect Harris' privacy. Public Officers Law §§ 87 (2) (b) & (g).There is no way to redact identifying details from a photograph. Public Officers Law § 89 (2) (c).In addition, this court finds that respondent set forth a "particularized and specific justification for denying access" in regards to this request. Matter of Capital Newspapers Div. of Hearst Corp., 67 NY2d 562, 566.

Finally, request 1 for the arrest reports should not be denied outright. A blanket denial is not appropriate where the requested record can be redacted to balance the competing interests of open government with personal privacy and safety. This court shall make an in camera inspection of any records, documents, memoranda, reports, or other materials responsive to request 1 to determine which material may properly be disclosed.

Accordingly, it is hereby, [*4]

ADJUDGED that the application by pro se petitioner for an order pursuant to CPLR Article 78, reversing respondent's implicit final determination, which denied the October 3, 2012 appeal of petitioner's June 12, 2012 FOIL request, is denied as to requests 2-4, without costs and disbursements to either party; and it is further

ORDERED that respondent is directed to produce to this court copies of any records, documents, memoranda, reports or other materials responsive to request 1 for an in camera inspection within thirty days from service of a copy of this order with notice of entry.

Dated:April 18, 2013

ENTER:

________________________

J.S.C.