Opinion
10053-09.
Decided March 31, 2010.
Sidney Butler, Pro-Se, Napanoch, NY.
John J. Carmody, Esq., Assistant District Attorney, District Attorney's Office, White Plains, NY.
Elyse Angelico, Esq., Assistant Attorney General, Attorney General State of New York, White Plains, NY.
Marisa Garcia, Yonkers, NY.
In this Article 78 proceeding, petitioner Sidney Butler ("Petitioner" or "Butler") seeks by writ of mandamus an order compelling disclosure of certain records under the Freedom of Information Law (Public Officers Laws §§ 84, et. seq. ("the FOIL")). Such records concern the disposition of criminal charges against a witness who testified at Butler's criminal trial in 1990, at which Butler was convicted of the felonies of murder in the second degree and criminal possession of a weapon in the third degree. Petitioner is currently incarcerated and serving an indeterminate prison term of twenty-five years to life at the Eastern NY Correctional Facility.
This proceeding was commenced by Order to Show Cause dated December 30, 2009 against the City of Yonkers and Marisa Garcia, Chief Clerk of the Yonkers City Court (collectively "Garcia") and Assistant District Attorney John Carmody ("Carmody") of the Westchester County District Attorney's Office (collectively "Respondents").Petitioner contends that his FOIL requests for the above-referenced records were submitted to Respondents last year, but no records were forthcoming.
Although styled as a proceeding directed against ADA Carmody and Court Clerk Garcia individually (as well as the City of Yonkers), Butler's FOIL requests and this proceeding from which such requests arise seek, in essence, records from the files of the Westchester County District Attorney's Office and the Yonkers City Court. In response to the Order to Show Cause, Carmody, by the District Attorney's Office, moved to dismiss the Petition, contending that the District Attorney's Office does not possess the "certificates of disposition" which Petitioner seeks. Garcia, by the Attorney General's Office, interposed an answer to the Petition denying Petitioner's right to mandamus relief on the principal ground that the Yonkers City Court, and its Clerk's office as a repository of the Court's records, are part of the "judiciary" under the FOIL and therefore outside of the scope of FOIL's provisions. For the reasons set forth below, the Court finds Respondents' arguments meritorious, and Petitioner's proceeding is dismissed.
Factual and Procedural Background
The essential facts underlying this proceeding are not in dispute. Petitioner maintains that by letter to ADA Carmody in August 2009, Butler requested two Certificates of Disposition — documents reflecting the disposition of criminal charges — with respect to a person who had testified as a witness for the People at Butler's trial. According to Butler, such certificates related to charges of prostitution that were resolved by convictions in 1989 and 1990.
By letter dated August 12, 2009 Carmody, in his capacity as Records Access Officer for the Westchester County District Attorney's Office, denied the request on the grounds that the District Attorney's Office does not maintain "Certificates of Disposition"; rather, such documents "are generated by the County Clerk's Office". The letter also advised Petitioner of his right to appeal to the FOIL Appeals Officer for the District Attorney's Office, Anthony J. Servino.
Petitioner appealed to Mr. Servino by letter dated August 25, 2009. The letter asserted that the information requested is "Rosario/Brady material" which Butler claimed "should be maintained in the files of the [District Attorney's] office because the witness . . . testified for the People during my trial." Butler's FOIL appeal was denied by letter from Mr. Servino to Petitioner dated September 8, 2009 in which Mr. Servino advised Butler that the District Attorney's files do not contain a "certificate of disposition regarding the charges of prostitution against [the person named by Butler]." Citing Public Officers Law § 89(3), Mr. Servino went on to state that it would require "a wholly new enterprise" to create such a record, which the District Attorney's office is not required to do under FOIL.
As far as Ms. Garcia, the City of Yonkers and the Yonkers City Court are concerned, on August 13 and September 2, 2009 Petitioner submitted a FOIL request for the same records to Respondent Garcia as Chief Clerk of the Yonkers City Court. In response, Ms. Garcia — who evidently misunderstood Petitioner's request — informed Petitioner by letter dated September 15, 2009 that "[a]fter searching our files, I do not find a case in this court against you." She asked that Petitioner provide his date of arrest and date of birth so that her office could further search its records. Petitioner contends that additional letters were sent to Garcia to determine the status of his FOIL request and clarify that the FOIL request was for information regarding the above-referenced witness, not himself. Despite Butler's claim, Garcia asserts here that after her letter of September 15 to Petitioner, she received no further correspondence from him until the instant Order To Show Cause. As discussed below, whether or not such subsequent correspondence was received by Garcia does not affect the Court's disposition of Butler's motion.
Discussion and Conclusions
Each Respondent seeks dismissal of the Petition; their respective contentions will be addressed separately.
Respondent Carmody has interposed a motion pursuant to CPLR §§ 3211 (a)(7) and 7804 (f) to dismiss the Petition on the ground that it fails to state a cause of action. Carmody contends that Petitioner's FOIL request as directed against him and, by implication, his office, was properly denied because the District Attorney's Office does not possess the records sought by Butler and is not required under FOIL to create or prepare any record that it does not possess or maintain. Since the Petition contains no factual allegations beyond a procedural recitation of Butler's submission, the denial of his FOIL requests and the denial of his FOIL appeal were not arbitrary and capricious.
This Court agrees with Respondent Carmody and Petitioner's application as to him is dismissed for the following reasons. As the documents submitted by Carmody on this motion show, Petitioner was advised by both the District Attorney's Records Access Officer Carmody and FOIL Appeals Officer Servino that the "certificates of disposition" are not records maintained by the District Attorney's Office, but are generated by the County Clerk's office. In denying Petitioner's FOIL appeal, Servino further informed Petitioner that his office's files do not contain a "certificate of disposition regarding the charges of prostitution against [the person designated by Petitioner]."
The District Attorney's Office's statement that it neither possesses nor maintains records of this nature was, essentially, a claim that those records could not be found after a diligent search. As the courts have held, upon such a claim, the burden then shifts to the petitioner to come forward with factual proof that the items sought actually exist in the files of the office to which the FOIL request was directed. For example in Ahlers v. Dillon, 143 AD2d 225 (2d Dept. 1988), the Second Department held that an Article 78 proceeding which challenged the denial of a FOIL request was properly dismissed when the prosecutor represented that his office did not possess the requested records and the petitioner was unable to "articulate a factual basis" for his claim to the contrary. Moreover, the FOIL does not specify the manner in which an agency must certify that documents cannot be located, or recount the steps undertaken by such agency in response to the FOIL request. Id.; see also, e.g., Pennington v. McMahon, 234 AD2d 624 (3rd Dept. 1996). Thus, Carmody was not required to provide a detailed description of the search or a personal statement from the person who actually conducted the search for the requested records. Rattley v. New York City Police Dep't, 96 NY2d 873 (2001).
In addition, as Carmody correctly maintains, Public Officer Law § 89(3)(a) specifically exempts him or any FOIL request recipient from any obligation that he or she create documents or prepare records that are not already possessed or maintained by his or her office. In the instant case, Butler failed to make any showing or "articulate [any] factual basis" that the records sought by him were in fact maintained in the files of the District Attorney's Office. Accordingly, the Petition with respect to Carmody is dismissed.
As far as Garcia is concerned, Garcia, by the Assistant Attorney General Elyse J. Angelico, filed a verified answer with exhibits in support of her contention that the Petition should be dismissed. Garcia principally argues that Butler's FOIL request, although technically directed to Garcia, was, as a practical matter, directed to the Yonkers City Court and seeks records allegedly maintained there. Accordingly, mandamus relief under Article 78 is not a proper remedy since the Yonkers City Court falls within the definition of "judiciary" under § 86(1) of the Public Officers Law as one of the "courts of the state" and is therefore exempt from FOIL'S compulsory disclosure requirements. Garcia maintains that as Chief Clerk of the City Court, her role has no separate existence apart from the City Court and thus disclosure is not required. In addition, Garcia — similar to Respondent Carmody — contends that her response to Petitioner's request satisfied the requirements of the Public Officers Law because the statute requires neither a detailed description of the search nor a personal statement from the person who actually conducted it. For the following reasons, the Court agrees with Garcia's former contention, and need not address the latter.
The FOIL, by its terms, only provides "[a]ccess to agency records." (Public Officers Law § 87, emphasis supplied). Public Officers Law 86(3) excludes "the judiciary" from the definition of an "[a]gency" subject to FOIL. Section 86(1) broadly defines the "[j]udiciary" as "the courts of the state, including any municipal or district court, whether or not of record." Public Officers Law § 86(4) in turn defines an agency "[r]ecord" to include "any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form whatsoever. . . ." (Public Officer's Law § 86(4); emphasis supplied). Accordingly, the production of a "record" — such as the certificates of disposition sought here — that is in the files of a court, including a court of record such as a City Court, may not be compelled under FOIL. The Court of Appeals so indicated in Newsday, Inc. V. Empire State Dev. Corp., 98 NY2d 359 (2002).
In Newsday, petitioner sought disclosure of subpoenas that had been issued by a court. However, at the time the FOIL requests were served, they were in the files of the respondent, Empire State Development Corp. ("ESDC"). The subpoenas had been served upon ESDC during the course of an investigation of it by the local District Attorney's office. Since the ESDC, "a state public corporation," was "undeniably an agency under FOIL," the subpoenas while in the files of ESDC were clearly "agency records" in the files of an "agency" and therefore subject to FOIL disclosure. ( Id. at 362). However, the Court of Appeals went on the state that had the same subpoenas been sought from the files of the court that had issued them, the court would not have been required to produce them pursuant to a FOIL request since courts are "immune from compulsory disclosure under FOIL." As the Court reasoned:
"To be sure, had the subpoenas remained in the exclusive possession of the court onwhose behalf they were issued, they would have been immune from compulsorydisclosure under FOIL. That, however, would not have been due to the fact that it was the court that produced them, but because the judiciary is expressly excluded from agency status under FOIL. Therefore, no "information . . . in any physical form" held or kept by a court as such is subject at all to FOIL, any more so than would records held or kept by a private person or any nongovernmental entity. The immunity of the subpoenas from FOIL when once possessed by a court however, does not run with those records. When they were served upon ESDC, a FOIL defined agency, they were fully subject to FOIL disclosure in the absence of any showing by ESDC that some statutory exemption applies."
Id. at 362-363 (emphasis supplied); see also, e.g. Daily News Publ. Co. v. Office of Court Admin. 186 Misc 2d 424 (Sup. Ct., NY Co. 2000); Capital Newspapers v. Whalen, 69 NY2d 246 (1987).
The Court's reasoning in Newsday is dispositive of the Petition herein with respect to Respondent Garcia. Petitioner Butler is clearly seeking disclosure of a "record" as defined under FOIL from the files of the Yonkers City Court. Whether such record — certificates of disposition of a person other than Butler — would have to be produced pursuant to FOIL by some governmental entity other than a court, or whether such a document might be available to Butler from the City Court through some means other than FOIL need not be decided here. The fact remains that under FOIL, such record is not disclosable from Yonkers City Court or its Clerk acting on its behalf since the "judiciary" is not an agency covered by FOIL.
The Court further notes that any suggestion that Yonkers City Court Clerk Garcia, individually or her office, is somehow divorced from or distinct from the City Court itself and therefore an "agency" under FOIL is of no moment and would war with common sense. A central role of any court clerk and his or her office is to maintain the court's records and as such they are clearly an arm of the court and thus part of the "judiciary" within the meaning of FOIL. See UCCA § 105(a).
Indeed, in Daily News Publishing Co. v. Office of Court Admin. 186 Misc 2d 424 (Sup. Ct., NY Co. 2000), the Supreme Court, New York County went even further, holding that court records contained in the files of the Office of Court Administration ("OCA") were exempt from disclosure under FOIL as records of the "judiciary". The Court reasoned that although OCA was not itself a court, OCA "has no distinct existence apart from the courts" and as such was effectively part of the "courts of the state" and outside the ambit of FOIL under the judiciary exception. Public Officers Law § 86(1); cf. Capital Newspapers v. Whalen, 69 NY2d 246 (1987). It therefore goes without saying that a court clerks office such as Garcia's, whose duty is to maintain the records of the court itself, has "no distinct existence apart from the [City Court]" and should therefore be deemed within the FOIL exemption as part of the "judiciary", at least as far as the records sought herein are concerned. Id.; see also, UCCA, § 105(a).
Accordingly, since the Yonkers City Court falls squarely within the definition of "judiciary" under the Public Officers Law and is exempt from FOIL disclosure, and since Respondent Garcia's role as Chief Clerk of the Yonkers City Court has no separate existence apart from that court, the records kept and filed by her on behalf of the City Court are exempt from disclosure under the FOIL. The Court need not reach Respondent Garcia's argument that the records requested by Petitioner were not in the possession of the Yonkers City Court.
Accordingly, it is hereby ORDERED that the Petition is dismissed in all respects.
The foregoing constitutes the Decision and Order of this Court.