Opinion
2012-06-14
In re Michael Owen HE'RON, Petitioner–Appellant, v. OFFICE OF the DISTRICT ATTORNEY, BRONX COUNTY, Respondent–Respondent.
Michael Owen He'ron, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.
Michael Owen He'ron, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo of counsel), for respondent.
Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered on or *467about May 19, 2011, which, to the extent appealed from as limited by the briefs, dismissed the petition brought pursuant to CPLR Article 78, seeking, inter alia, to compel respondent to provide the records of criminal convictions and/or pending charges against one George Santos, a purported witness at petitioner's 1980 murder trial, which petitioner sought through a Freedom of Information Law (FOIL) request, unanimously affirmed, without costs.
Respondent satisfied the requirements of Public Officers Law § 89(3) by certifying that a diligent search had been conducted and the documents could not be located in respondent's files ( see Matter of Rattley v. New York City Police Dept., 96 N.Y.2d 873, 730 N.Y.S.2d 768, 756 N.E.2d 56 [2001];Matter of Alicea v. New York City Police Dept., 287 A.D.2d 286, 731 N.Y.S.2d 19 [2001] ). An agency is not required to create records in order to comply with a FOIL request (Public Officers Law § 89[3]; see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 464, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007] ).