Opinion
Index No. 521549/2023
08-23-2024
In the Matter of the Application of Michael Cobb a/k/a SEAN ELLERBY, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules v. George Forbes, FOIL Appeals Officer for the Kings County District Attorney's Office, and the KINGS COUNTY DISTRICT ATTORNEY'S OFFICE, Respondents.
Attorney for Petitioner Matthew Brett Segal Segal Law Firm, P.C. Attorney for Respondent Zachary Sider Kings County District Attorney's Office
Unpublished Opinion
Attorney for Petitioner
Matthew Brett Segal
Segal Law Firm, P.C.
Attorney for Respondent
Zachary Sider
Kings County District Attorney's Office
Francois A. Rivera, J.
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-18
Opposing Affidavits/Answer (Affirmations) 23-33
Affidavits/ Affirmations in Reply 35
Other Papers: Orders dated 1/11/24, 3/14/ 24 & 4/2/24 36, 40, 41
Other Papers: Supplemental Papers responding to orders 37, 38-39, 42. 43
Upon the foregoing papers, petitioner Michael Cobb a/k/a Sean Ellerby petitions, pursuant to CPLR article 78 and the Freedom of Information Law (FOIL) (Public Officers Law Article 6) for an order (1) directing the respondent Kings County District Attorney's Office (KCDA) to produce all documents and records relating to the arrest, investigation and prosecution of petitioner in the case of People v Michael Cobb a/k/a Sean Ellerby, Supreme Court, Kings County, Indictment Number 10070/91, and (2) awarding petitioner's counsel his legal fees and expenses incurred in making the instant petition for relief.
BACKGROUND
In 1993, petitioner was tried and convicted of murder in the second degree, robbery in the first degree, and weapons possession in the second and third degree and was thereafter sentenced to 42 years to life for, among other things, the shooting death of John Calloway and possession of a weapon at the time of his arrest (see People v Cobb, 77 A.D.3d 673 [2d Dept 2010], lv denied 15 N.Y.3d 952 [2010]; see Cobb v Lee, 2022 WL 900570, *1 [EDNY 2022]). At the trial, two witnesses testified that they were sitting in a car with Calloway when petitioner and two accomplices approached the car with guns drawn, took the car's keys and forced Calloway out of the car and walked him towards a housing project from which one of these witnesses testified that he heard shots fired (Cobb, 2022 WL 900570, *1). When the police arrested petitioner after the shooting, he possessed a 9mm Glock pistol, the ballistics of which matched the bullets extracted from Calloway's head and a shell casing found at the scene of the murder (id.). Since that time, petitioner's judgment of conviction has been affirmed (People v Cobb, 77 A.D.3d 673), two CPL 440.10 motions have been denied, and his application for a writ of habeas corpus, pursuant to 28 USC § 2254, has been denied (Cobb, 2022 WL 900570, *1).
Petitioner has made previous FOIL requests to the KCDA that were granted in part and denied in part (see Matter of Cobb v District Attorney, Kings County, Sup Ct, Kings County, June 11, 2015, Rivera, J., index No. 3815/15, at 5). Petitioner's prior CPLR article 78 petition challenging the portion of the August 13, 2013 request that was denied by the KCDA was dismissed as untimely (id. at 5-6). Although the KCDA references the previous FOIL request in its current papers, it makes no argument that the prior FOIL requests have any bearing on petitioner's current application. Petitioner also previously made a FOIL request to the New York City Police Department (NYPD) relating to the criminal investigation and prosecution at issue here. While the NYPD provided petitioner with some documents, it appears to have largely denied his request. Petitioner's CPLR article 78 proceeding relating to the NYPD's determination was denied as untimely and alternatively denied because (1) petitioner failed to obtain personal jurisdiction over respondent, and (2) such disclosure would have interfered with the then pending writ of habeas corpus in Federal Court action (Matter of Cobb v New York City Police Dept., 59 Misc.3d 1229 [A], 2018 NY Slip Op 50792[U], *3-5 [Sup Ct, New York County 2018]).
In a FOIL request letter received by the KCDA on February 14, 2022, petitioner, by way of his current counsel, asked that the KCDA provide him with copies of all records in its possession with respect to the People v Michael Cobb a/k/a Sean Ellerby prosecution. Petitioner's FOIL letter indicated that, at a minimum, he was requesting all DD-5 police reports; complaint follow up reports; wanted posters; statements; interview reports; photographs of the blue Mercedes Benz 190E; witness information including transactions and vouchers; witness relocation information; transcripts of any testimony under oath; NYS Division of Parole reports; Seneca, South Carolina Police Department Reports; Expense Vouchers; receipt and termination of custody reports; material witness orders and affidavits; subpoenas; district attorney complaint room input form; relocation file relating to Jerry Neal, Emma Smith, Billy Williams, and Patricia Thomas; witness protection file relating to Jerry Neal and Billy Williams; any and all letters of recommendation (in any form i.e. emails, fax, etc.) for probation consideration for Billy Williams; any and all ballistic reports, photographs, vouchers, notes prepared by Detective Thomas Natale and Detective Charles Hopkins; any and all memo pad entries; any and all New York City Housing Authority Police reports, memos, vouchers, inter-state communication records from Wilmington, Delaware; any and all copies of Warrants; any and all memo book entries, notes, and reports, by any Detective Investigators; any and all statements, probation reports, etc., in relation to Raheim Harris; any and all ESU reports; any and all communication between the Wilmington, Delaware Police Department and New York State Parole Division regarding Michael Cobb; any and all reports, memos, communications and video surveillance between the FBI, DEA, and any other law enforcement agencies in regard to Michael Cobb; any and all communications, memo book entries, reports, etc., between Detective Disabatino of the Wilmington, Delaware Police Department and New York Police, and/or the New York District Attorney Office, and/or New York Parole agencies; any and all records of any agreements, inducements of promises made by any and all Kings County Police Departments, and/or Kings County District Attorney's Office and/or any State or Federal Agencies (i.e. promise of leniency for any pending or future criminal matters, payment for testimony, parole/probation, job assistance, and or housing) in relation to Jerry Neal, Emma Smith, Billy Williams, Patricia Thomas, Rolando Quinones, and Raheim Harris; any and all records of communications, letters/notes, and/or memos of assistance, recommendations, referrals, or statements to the Probation Department, and or New York City Housing Authority, regarding Raheim Harris, Billy Williams, Jerry Neal, Rolando Quinones; EMS Reports; any and all sign in logbooks, which record Detective Investigators' travel and transportation information, apprehension and/or arrest, and "hotel custody" and "custody" logbooks held in either Michael Cobb's case folder, and/or the Detective Investigators' squad and relocation unit; a complete index of all papers relevant to the Michael Cobb case that are in the possession of and/or under control of your office; and any other documents related to the police investigation pertaining to the above captioned matter.
By way of a letter dated February 15, 2022 signed by David Casona, a KCDA FOIL records access officer, the KCDA acknowledged receipt of petitioner's FOIL request, but informed petitioner that, for various reasons, the KCDA would be unable to process petitioner's request within 20 business days. The KCDA issued its initial determination regarding petitioner's FOIL request in a letter from respondent George Forbes, a KCDA Assistant District Attorney, dated February 28, 2023. In this letter, ADA Forbes informed petitioner that the KCDA was granting his request to the extent that it would produce copies of 1,099 pages of documents and 3 CDs provided that petitioner sent the KCDA a check in the amount of $289.75 within 60 days. With respect to the documents provided, ADA Forbes stated that the KCDA had redacted information in the documents to remove witness names, addresses, telephone numbers and other such identifying information based on FOIL's direction that such redaction may be done when the information "would constitute an unwarranted invasion of personal privacy" (Public Officers Law § 87 [2] [b]).
Since Public Officers Law § 87 (2) (a) allows an agency to deny requests for records exempted from disclosure under state and federal statutes, ADA Forbes stated that the KCDA denied requests for grand jury records, which are required to be kept secret under CPL 190.25 (4); criminal history sheets, which are available only to qualified agencies under Executive Law § 837 (8); autopsy reports, which are exempt under New York City Charter § 557 (g); and Family Court records, which are not open to public inspection under Family Court Act § 166. ADA Forbes also stated that the victim's medical records were not disclosed because disclosure of such would constitute an unwarranted invasion of personal privacy under Public Officers Law § 89 (2) (b) (ii), that disclosure of attorney notes in the file was denied based on the intra-agency exemption contained in Public Officers Law § 87 (2) (g); and that disclosure with respect to preliminary hearing and parole revocation hearing transcripts was denied on the ground that such transcripts are not subject to disclosure because such documents are court records and not agency records covered by FOIL.
By way of a letter from petitioner's counsel dated March 28, 2023, petitioner administratively appealed the FOIL determination to the extent that the KCDA denied production of documents. In this letter, counsel noted that, with respect to the portion of the FOIL request that had been granted, a check had been sent and received by the KCDA, but that the records had not been received by counsel. Additionally, counsel generally asserted that, to the extent that the KCDA had denied the FOIL request, the denial was contrary to the presumptive disclosure requirements of FOIL and the requirements that the agency justify its reliance on exemptions by particularized and specific justifications for denying access as outlined in cases such as Matter of Friedman v Rice (30 N.Y.3d 461 [2017]) and Matter of Gold v New York City Police Dept. (89 N.Y.2d 267 [1996]).
In a letter dated April 11, 2023, the KCDA's FOIL Appeals Officer reversed the February 28, 2023 determination only with respect to the portion that denied the request with respect to parole revocation hearing transcripts and otherwise affirmed the denials by ADA Forbes for essentially the same reasons as stated by ADA Forbes.
Of note, the Appeals Officer stated that the denial of production of the Grand Jury Minutes, in addition to the ground stated by Forbes, was also justified because Grand Jury minutes are court records, not agency minutes.
In a letter dated April 28, 2023, counsel for petitioner stated that he was then in receipt of the FOIL material that had been granted and reiterated his assertion that the KCDA had improperly denied the request with respect to the remaining documents. In an email response dated April 28, 2023, ADA Forbes stated that "[t]here is no second appeal in FOIL." Additionally, ADA Forbes, while noting that petitioner could not have previously appealed issues that were not apparent until the receipt of the documents, asserted that the April 28, 2023 letter had raised no issues regarding the material that had been provided by the KCDA.
Petitioner commenced the instant proceeding challenging the FOIL denial with the filing of this petition on July 26, 2023. In the petition, petitioner asserts that the KCDA erred in denying his FOIL request and asserts that the documents that it did provide demonstrate that additional documents should have been contained in the KCDA's files related to plaintiff's prosecution that were not produced.
This court, in an order dated January 11, 2024, adjourned the petition to March 14, 2024 with a directive requiring petitioner to file an affirmation/affidavit outlining the specifics of his FOIL request, appeal issues and results, and what issues remain by January 25, 2024 and requiring that the KCDA file a responsive affirmation/affidavit by February 16, 2024. In an affirmation dated January 24, 2024, counsel for petitioner outlined the documents that had been provided, reiterated his assertions that the KCDA had improperly relied upon inapplicable exemptions to deny the remainder of the request, and listed documents he believed were in the KCDA's files that were not provided. The KCDA responded with an affirmation and memorandum of law both dated February 13, 2024. Following oral argument held on March 14, 2024, the court, in an interim order, directed the parties to submit a proposed supplemental order, and, in an order dated April 2, 2024, directed the KCDA to provide, by April 16, 2024, a response to each item identified by petitioner as not having been produced by the KCDA. The court, in this April 2, 2024 order, directed that the KCDA either provide the documents identified by petitioner or provide the court with an explanation or specific statutory basis for that item not being provided. The KCDA responded to this order with a letter dated April 16, 2024 and a letter dated May 16, 2024.
In the letter dated April 16, 2024, the KCDA represented that the petitioner was, in fact, provided with records that were responsive to items 20.1 (all records in petitioner's file), 20.3 (DD-5 police reports), 20.8 (material witness order and affidavits), 20.9 (subpoenas), 20.11 (housing police records), 20.15 (any and all copies of warrants), 20.16 (records of communications with Delaware Police), 20.17 (any and all ESU reports), 20.21 (EMS Reports), 20.25 (any and all documents relating to the police investigation relating to petitioner's criminal prosecution), and 20.26 (documents related to the investigation and shooting of Reginald Hardy) to the extent that such records were located and fall within the ambit of a FOIL disclosure.
With respect to item 20.4, which requested "witness information including transactions and vouchers," and item 20.5, which requested "witness relocation information," the KCDA notes that it is not required to create records, except to the extent that it can, with reasonable effort, extract a record or data maintained on a computer storage system, and that request items 20.4 and 20.5 failed to reasonably describe the records sought (see Public Officers Law § 89). Regarding, item 20.6, requesting copies of testimony under oath, the KCDA noted that it had provided parole revocation hearing transcripts in its possession, but that it was not obligated to provide transcripts of court proceedings because such transcripts are court records, not agency records.
With respect to items 20.7 (receipt and termination of custody report), 20.10 (relocation file relating to Jerry Neal, Emma Smith, Billy Williams and Patricia Thomas), item 20.12 (witness protection file relating to Jerry Neal and Billy Williams), 20.19 (records of agreements/promises made by the KCDA or other law enforcement agencies in relation to Jerry Neal, Emma Smith, Billy Williams, Patricia Thomas, Rolando Quinones and Raheim Harris), 20.20 (same as item 20.19 except with respect to Probation Department and/or the New York City Housing Authority), and 20.22 (lodging vouchers, custody reservation requests for all witnesses), the KCDA represented that it provided responsive records with respect to Jerry Neal, Billy Williams and Patricia Thomas, but that it was unable to locate records relating to Emma Smith, Rolando Quinones and Raheim Harris to the extent that such records fell within the ambit of a FOIL disclosure. The KCDA further noted that, as stated in the letter responding to petitioner's previous FOIL request from August 2013, additional responsive records were withheld under the exemption for disclosure that would endanger the life and safety of a person (Public Officers Law § 87 [2] [f]).
The KCDA also denied having any records responsive to items 20.13 (requesting letters of recommendation in any form for probation consideration for Billy Williams ), 20.2 (requesting ballistic testing results), 20.14 (requesting ballistic reports, photographs, vouchers, and notes prepared by Detective Thomas Natale and Detective Charles Hopkins), and 20.18 (requesting all reports, memos, communications and video surveillance between the FBI, DEA, and any other law enforcement agencies in regard to Michael Cobb). With respect to item 20.23, which sought "any and all sign in logbooks, which record Detective Investigator's travel and transportation information, apprehension and/or arrest, and 'hotel custody' and 'custody' logbooks held in either Michael Cobb's case folder, and/or the Detective Investigator's squad and relocation unit," the KCDA noted that it has no extant sign in logbooks dating earlier than July 27, 1993, more than six months after the petitioner's case concluded. With respect to custody logbooks, although no responsive records were located, the KCDA indicated that it would conduct an additional search. In its May 16, 2024 letter, the KCDA stated that it had conducted such search, and found a relevant entry and provided a copy thereof, although it redacted the hotel name and entries that related to other matters.
To the extent that such items might be contained in the files relating to William's prosecution under Kings County Indictment Number 6675/90, the KCDA asserted that such records are confidential since Williams was adjudicated a Youthful Offender (Public Officers Law § 720.35).
Finally, with respect to item 20.24, requesting a complete index of papers relevant to Michael Cobb in the KCDA's possession or control, the KCDA stated that it had no obligation to create such an index.
LAW AND APPLICATION
The purpose of FOIL is "[t]o promote open government and public accountability" (Matter of Gould v New York City Police Dept., 89 N.Y.2d 267, 274 [1996]). In furtherance of the legislature's policy of disclosure, "FOIL provides the public with broad 'access to the records of government' [and] [a]n agency must 'make available for public inspection and copying all records' unless it can claim a specific exemption to disclosure" (Matter of Data Tree, LLC v Romaine, 9 N.Y.3d 454, 462 [2007], quoting Public Officers Law §§ 84, 87 [2]; 89 [3]). These "exemptions are to be narrowly interpreted so that the public is granted maximum access to the records of government" (id. at 462). "The standard of review in a CPLR article 78 proceeding challenging an agency's denial of a FOIL request is [therefore] much more stringent than the lenient standard generally applicable to CPLR article 78 review of agency actions" (Matter of Luongo v Records Access Officer, 161 A.D.3d 1079, 1080 [2d Dept 2018]; see Matter of Gruber v Suffolk County Bd. of Elections, 218 A.D.3d 682, 684 [2d Dept 2023], lv denied 41 N.Y.3d 902 [2024]). In such a proceeding, "the court is to presume all records are open" (Matter of Berger v New York City Dept. of Health & Mental Hygiene, 137 A.D.3d 904, 906 [2d Dept 2016], lv denied 27 N.Y.3d 910; see Matter of Gould, 89 N.Y.2d at 274-275) and "an agency claiming an exemption from disclosure has 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 Luongo, 161 A.D.3d at 1080 [internal quotation marks omitted]; see Matter of Gould, 89 N.Y.2d at 275; Matter of Gruber, 218 A.D.3d at 684). "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed" (Matter of Berger, 137 A.D.3d at 906 [internal quotation marks omitted]).
Here, the KCDA has met its burden of demonstrating the applicability of exemptions from disclosure with respect to several categories of documents requested by petitioner. Namely, grand jury records need not be disclosed because they are statutorily exempt from disclosure under CPL 190.25 (4) (a) (see Matter of Hall v Bongiorno, 305 A.D.2d 508, 509 [2d Dept 2003]; Matter of Newton v District Attorney of Bronx County, 186 A.D.2d 57, 57 [1st Dept 1992]; Public Officers Law § 87 [2] [a]) and due to the fact that said minutes are court records, not agency records (see Matter of Hendrix v Monroe County Dept. of Communication, 151 A.D.3d 1857, 1857 [4th Dept 2017], lv denied 30 N.Y.3d 904 [2017]; Matter of Hall, 305 A.D.2d at 509; Public Officers Law § 86 [1], [3]). The KCDA also properly relied upon statutory exemptions (Public Officers Law § 87 [2] [a]) in declining to provide criminal history reports (see Matter of Nix v New York State Div. of Criminal Justice Servs., 167 A.D.3d 1524, 1525 [4th Dept 2018], lv denied 33 N.Y.3d 908 [2019]; Matter of Gerace v Mandel, 267 A.D.2d 386, 386 [2d Dept 1999]; Executive Law § 837 [8]; 9 NYCRR 6150.4 [b] [6]), autopsy records (Matter of Harris v Bronx County Dist. Attorney, 213 A.D.3d 410, 411 [1st Dept 2023]; Matter of Assakaf v Arden, 210 A.D.2d 325, 325 [2d Dept 1994]; NY City Charter § 557 [g]), and family court records (Family Court Act §§ 166, 380.1, 381.2, 381.3; see also Matter of Giovanni G., 152 A.D.3d 419, 420 [1st Dept 2017]; People v Campbell, 98 A.D.3d 5, 12-13 [2d Dept 2012], lv denied 20 N.Y.3d 853 [2012]). The victim's medical records are exempt from disclosure under the unwarranted invasion of personal privacy exemption (see Matter of Harris, 213 A.D.3d at 411; Matter of Crowe v Guccione, 171 A.D.3d 1170, 1171-1172 [2d Dept 2019]; Matter of Berger, 137 A.D.3d at 907; Public Officers Law §§ 87 [2] [b], 89 [2] [b] [ii]). Given the nature of these exemptions, the court further finds that, contrary to petitioner's contentions, the shorthand descriptions of the material are sufficient to demonstrate the applicability of the exemptions at issue.
On the other hand, this court finds that the KCDA has failed to meet its initial burden with respect to other claimed exemptions. In this regard, the KCDA withheld attorney notes contained in the file as "inter-agency or intra-agency materials" under Public Officers Law § 87 (2) (g). The purpose underlying the intra-agency exemption is "to protect the deliberative process of the government by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision makers" (Matter of Xerox Corp. v Town of Webster, 65 N.Y.2d 131, 132 [1985] [internal quotation marks omitted]). "[I]ntra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination" (Matter of Gould, 89 N.Y.2d at 276, quoting Public Officers Law § 87 [2] [g] [i]). "Factual data... simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" (Matter of Gould, 89 N.Y.2d at 277). While the fact that the withheld notes were made by attorneys may provide some basis to infer that the notes involve opinions or advice, in the absence of any detail regarding what is contained in the withheld records, the KCDA's conclusory assertion that the material is deliberative rather than factual in nature provides insufficient support for the exemption to allow a determination on the record here (see Matter of Newsday, LLC v Nassau County Police Dept., 222 A.D.3d 85, 94 [2d Dept 2023]; Matter of Jewish Press, Inc. v New York City Dept. of Investigation, 193 A.D.3d 461, 463 [1st Dept 2021]; Matter of New York Times Co. v District Attorney of Kings County, 179 A.D.3d 115, 124-125 [2d Dept 2019]; see also Wasserman v Amica Mut. Ins. Co., 193 A.D.3d 795, 798 [2d Dept 2021]). Under these circumstances, an in camera inspection of the records is necessary to determine the applicability of the exemption and the KCDA is thus directed to produce the attorney notes to the court for an in camera inspection (see Matter of Xerox Corp., 65 N.Y.2d at 133; Matter of Jewish Press, Inc., 193 A.D.3d at 463; Matter of New York Times Co., 179 A.D.3d at 125).
Regarding the documents provided to petitioner, the KCDA represents that it redacted "witness names, addresses, telephone numbers, occupations, mugshots and other identifying information, including witness statements where applicable and asserts that such redaction was necessary to protect individuals from invasion of personal privacy pursuant to Public Officers Law §§ 87 (2) (b), 89 (2) (b). "[A]n agency may deny access to records or portions thereof 'to prevent unwarranted invasions of... privacy'" (Matter of Aron Law, PLLC v New York City Fire Dept., 191 A.D.3d 664, 666 [2d Dept 2021], quoting Public Officers Law § 89 [2] [a]). "'The Public Officers Law provides a nonexhaustive list of categories of information that would constitute an unwarranted invasion of personal privacy if disclosed'" (Matter of Gruber, 218 A.D.3d at 684, quoting Matter of Aron Law, PLLC v New York City Fire Dept., 191 A.D.3d at 666). Where none of these enumerated categories is applicable, "'a court must decide whether any invasion of privacy... is unwarranted by balancing the privacy interests at stake against the public interest in disclosure of the information'" (Matter of Gruber, 218 A.D.3d at 684, quoting Matter of Liang v Nassau County Off. of Consumer Affairs, 176 A.D.3d 808, 809 [2d Dept 2019]; see also Matter of Harbatkin v New York City Dept. of Records & Info. Servs., 19 N.Y.3d 373, 380 [2012]).
While the redaction of addresses, telephone numbers and other personal contact information may be warranted as a matter of course (see Matter of Villalobos v New York City Fire Dept., 130 A.D.3d 935, 937 [2d Dept 2015]), the KCDA's conclusory assertions in support of its invocation of the personal privacy exemption fail to demonstrate that the redaction of witness statements and names from the records produced was warranted (see Matter of Baez v Brown, 124 A.D.3d 881, 883 [2d Dept 2015], lv dismissed 26 N.Y.3d 981 [2015]; see also Matter of Gannett Co., Inc. v Town of Greenburgh Police Dept., ___ A.D.3d ___, 2024 NY Slip Op 04071, *2 [2d Dept 2024]; Matter of Liang, 176 A.D.3d at 809-810 [2d Dept 2019]; Matter of Laveck v Village Bd. of Trustees of the Vil. of Lansing, 145 A.D.3d 1168, 1170 [3d Dept 2016]; Matter of Villalobos, 130 A.D.3d at 937; see generally Matter of Harbatkin, 19 N.Y.3d at 380-381; but see Matter of Exoneration Initiative v New York City Police Dept., 132 A.D.3d 545, 546 [1st Dept 2015]; Matter of Exoneration Initiative v New York City Police Dept., 114 A.D.3d 436, 437-438 [1st Dept 2014]). As the privacy interests of third-parties who are not before the court are at stake (see Matter of Whitfield v FOIL Appeals Officer, Dept. of Corr. & Community Supervision, 221 A.D.3d 1341, 1344 [3d Dept 2023]; see also Matter of Johnson Newspaper Corp. v Stainkamp, 61 N.Y.2d 958, 959 [1984]), the court, rather than simply directing the removal of such redactions, directs that the KCDA produce unredacted copies of the material for in camera inspection and will consider arguments and evidentiary proof regarding the privacy interests at stake (see Matter of Lane v Port Wash. Police Dist., 221 A.D.3d 698, 707 [2d Dept 2023]; Matter of Whitfield, 221 A.D.3d at 1345; Matter of Thomas v New York City Dept. of Educ., 103 A.D.3d 495, 499-500 [1st Dept 2013]).
This court notes that in the Matter of Exoneration Initiative (132 A.D.3d at 546), the court had reviewed the records in camera.
The KCDA's conclusory assertions likewise fail to demonstrate that the redactions are justified under Public Officer's Law § 87 (2) (e) (iii), which exempts disclosure that would identify a confidential source or disclose confidential information relating to a criminal investigation, as it has failed to show that the witnesses at issue provided information with an express promise of confidentiality or that, under the circumstances of the case, the confidentiality of the source or information can be reasonably inferred (see Matter of Friedman v Rice, 30 N.Y.3d 461, 481-482 [2017]). Additionally, the KCDA's conclusory assertions fail to show that such redactions are justified under Public Officer's Law § 87 (2) (f), which exempts disclosure that would endanger the life and safety of any person (see Matter of Chebere v Johnson, 3 A.D.3d 365, 366 [1st Dept 2004], lv dismissed 2 N.Y.3d 778 [2004]; Matter of Collins v New York City Police Dept., 55 Misc.3d 1214 [A], 2017 NY Slip Op 50578[U], *3-4 [Sup Ct, New York County 2017]; see also Matter of Friedman, 30 N.Y.3d at 481-482; but see Matter of Exoneration Initiative, 132 A.D.3d at 546). As with the personal privacy exemption, the court directs that the KCDA provide the court with unredacted material for an in camera inspection and provide any proof relevant to witness confidentiality and/or safety.
Although the fact that a case involves a homicide conviction is certainly relevant to the applicability to the life and safety exemption under section 87 (2) (f), this court finds that the rationale of the Court of Appeals holding in Friedman rejecting a blanket exemption for non-testifying witnesses under section 87 (2) (e) (iii) would likewise preclude this court from finding that the fact that the records here relate to a homicide conviction is sufficient, in and of itself, to mandate a finding that disclosing a witness name or statement could endanger the life or safety of that witness (compare Matter of Friedman, 30 N.Y.3d at 477-481 with Matter of Exoneration Initiative, 132 A.D.3d at 546).
In addition to the documents that were not turned over for these reasons, petitioner alleges that the documents that were provided demonstrate that the KCDA is in possession of additional documents that were withheld and that are not covered by the various exemptions relied upon above. With respect to this alleged non-disclosure of items that should have been in its files, the KCDA asserts that petitioner has waived his objections to such non-disclosed items because he failed to exhaust his administrative appeals in this respect. This court, however, finds that the exhaustion argument is misplaced, as each item petitioner has identified as not being turned over was requested as part of petitioner's initial FOIL request and this court sees no reason for petitioner to have to bring a second appeal to address the non-production of documents that petitioner believes would have been in the files, especially since the KCDA did not actually forward petitioner copies of the documents until the time that it denied the administrative appeal (see Matter of Jewish Press, Inc. v New York City Dept. of Records & Info. Servs., 215 A.D.3d 423, 423 [1st Dept 2023]).
On the merits, the KCDA essentially asserts that it has provided all of the items in its files to the extent that FOIL requires it to do so. In other words, the KCDA asserts that, to the extent that it has not provided material, the material constitutes court records, not agency material, is covered by an exemption relied upon it, or is not contained within its records. Except with respect to item 20.24, in which petitioner requests a complete index of papers relevant to petitioner's case in the KCDA's possession or control, the issues relating to agency records, statutory exemptions, the intra-agency exemption and the various privacy exemptions are discussed above and require no further discussion.
Regarding item 20.24, the KCDA did not address petitioner's request for the index of papers in its initial FOIL determination letter dated February 28, 2023 and in its appeal determination letter dated April 11, 2023. While the KCDA's assertion that it has no duty to create such an index implies that it has no such index, to the extent that the KCDA has such an index, a copy thereof must be provided to petitioner. However, the KCDA is correct that it has no duty to create such an index (see Matter of Allen v Strojnowski, 129 A.D.2d 700, 701 [2d Dept 1987], lv dismissed 70 N.Y.2d 871 [1987]; see Matter of Goldstein v Incorporated Vil. of Mamaroneck, 221 A.D.3d 111, 123 n3 [2d Dept 2023] [an agency responding to a FOIL request is not required to create any new record or data that is not already possessed and maintained by it as such]).
With respect to the remaining requests not covered by a FOIL exemption, the KCDA essentially contends that it does not possess requested records. Under FOIL, an agency does not have an obligation to furnish records it does not possess (see Matter of Badalamenti v Office of Dist. Attorney Nassau County, 89 A.D.3d 1019, 1020 [2d Dept 2011]; Matter of Rivette v District Attorney of Rensselaer County, 272 A.D.2d 648, 649 [3d Dept 2000]), and is not required to produce records held by other agencies or entities unless such records are being held on its behalf (see Matter of Marino v Rosa, 55 A.D.3d 1173, 1174 [3d Dept 2008]; see also Matter of Jewish Press, Inc. v New York State Police, 207 A.D.3d 971, 972-973 [3d Dept 2022]; Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 195 A.D.3d 1133, 1135-1136 [3d Dept 2021], lv denied 37 N.Y.3d 914 [2021]). However, "[w]hen an agency is unable to locate documents properly requested under FOIL, Public Officers 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'" (Matter of Rattley v New York City Police Dept., 96 N.Y.2d 873, 875 [2001]; quoting Public Officers Law § 89 [3] [a]). Although such a certification need not contain a detailed description of the search nor a personal statement from the person who performed the search, the KCDA's April 16, 2024 and May 16, 2024 letters, as well as the February 28, 2023 denial letter and April 11, 2023 appeal denial letter, aside from failing to contain any "certification" language, fail to sufficiently identify the requested records that are not in its possession to constitute proper certifications under Public Officers Law § 89 (3) (a) (see Matter of Goldstein, 221 A.D.3d at 118; Matter of Baez, 124 A.D.3d at 884; cf. Matter of Rattley, 96 N.Y.2d at 875). Accordingly, to the extent that the KCDA has not already done so, it must conduct a diligent search of its records, and produce the records to the extent they are not subject to exemptions already before the court, or supply petitioner with a proper certification that it does not possess the records (see Matter of Thomas v Kane, 203 A.D.3d 1487, 1489 [3d Dept 2022]; Matter of Baez, 124 A.D.3d at 884).
The court notes that, even upon the submission of a proper certification, petitioner may be entitled to a hearing with respect to the diligence of the KCDA's records search upon a showing that there is a factual basis that the requested documents exist and were within the agency's control (see Matter of DeWolf v Wirenius, ___ A.D.3d ____, 2024 NY Slip Op 03790, *2 [3d Dept 2024]; Matter of Oddone v Suffolk County Police Dept., 96 A.D.3d 758, 761 [2d Dept 2012]). A petitioner, however, will not meet the burden for such a hearing based on speculation or a showing of proof that the record may be possessed by another agency (see Matter of Jackson v Albany County Dist. Attorney's Off., 176 A.D.3d 1420, 1422 [3d Dept 2019]; Matter of Calvin K. of Oakknoll v De Francesco, 200 A.D.2d 619, 619 [2d Dept 1994], lv denied 83 N.Y.2d 756 [1994]).
As this order does not finally determine the petition, the request for attorney's fees and costs cannot be determined at this juncture (see Matter of Goldstein, 221 A.D.3d at 127; Matter of Lane, 221 A.D.3d at 708).
CONCLUSION
Accordingly, the petition is granted only to the extent that: (1) the KCDA is directed to submit to the court the attorney notes claimed to fall with the intra-agency exemption and unredacted copies of the redacted records and any documentation supporting the privacy exemptions relied upon for the redactions for an in in camera review on or before October 31, 2024; (2) in the event that the KCDA has not already done so, the KCDA must conduct a diligent search of its records, and produce the records to the extent they are not subject to exemptions already before the court, or supply petitioner with a proper certification that such records cannot be located on or before October 31, 2024; and (3) the unredacted records and any applicable certifications, must be delivered to Chambers on or before October 31, 2024, no later than 3:30 p.m., to the 11th Floor, at Kings County Supreme Court - Civil Term, located at 360 Adams Street, Brooklyn, New York, with a coversheet to the attention of Justice Francois A. Rivera, indicating the index number, and the words, "For the Judge's Eyes Only."
If the Court requires any additional information or argument, it will notify the parties.
The foregoing constitutes the decision and order of the court.