Opinion
10 Civ. 3870 (JGK).
December 2, 2010
MEMORANDUM OPINION AND ORDER
The Court has received the attached letter from the petitioner. Nothing in the letter changes the Court's prior orders in this case, the most recent of which is dated November 29, 2010. No further action is required in response to this letter.
The Court notes that the petitioner is complaining about a response by the Office of the District Attorney, Bronx County, to a Freedom of Information Law ("FOIL") request. The response notes that there are procedures under state law for appealing the partial denial of a FOIL request, and that the petitioner may wish to pursue such proceedings. Pending before this Court is a petition for habeas corpus. The standards are different for obtaining discovery in such a proceeding, and would require the petitioner to show good cause for the discovery. See Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003). Thus far the Court has ruled on all applications to the Court for documents in this proceeding, and there is nothing in the petitioner's letter that causes the Court to alter any of its rulings.
SO ORDERED.
Dated: New York, New York December 1, 2010
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OFFICE OF THE DISTRICT ATTORNEY, Bronx County
DISTRICT ATTORNEY ROBERTT. 198 East 161st Street JOHNSON Bronx New York 10451 November 10, 2010 Eddie Tarafa, 08-A-0632 Clinton Correctional Facility P.O. Box 2000 Dannemora, NY 12929 Re: Freedom of Information Request Indictment Numbers: 3439/2004 3821/2001 Dear Mr. Tarafa:I am writing to inform you that your request for documents, dated October 5, 2010, pursuant to New York Public Officers Law, Article 6, sections 84 et seq., the Freedom of Information Law ("FOIL"), has been granted in part and denied in part. I have found 7 disclosable documents responsive to your request.
GRANTED
Your request for "the request for an extension to file reply, filed by Robert R. Sandusky, III, of the Office of the District Attorney, Bronx County. . . . under Indictment No. 3821/2001" is granted. I have found 6 documents responsive to this request:
— a letter dated March 16, 2010, to Justice Nicholas Iacovetta in which ADA Sandusky confirms the court granted his request for an extension to file a reply to your CPL Article 440 motion (1 page);
— a letter dated May 14, 2010, to Justice Iacovetta in which ADA Sandusky confirms the court granted his second request for an extension to file a reply to your CPL Article 440 motion (1 page);
— a letter dated July 4, 2010, to District Judge Koeltl in which ADA Sandusky requests an extension to reply to your habeas corpus petition (2 pages);
— a letter dated August 31, 2010, to District Judge Koeltl in which ADA Sandusky requests a second extension to reply to your habeas corpus petition (1 page); and
— a letter dated September 30, 2010, to District Judge Koeltl in which ADA Sandusky requests a third extension to reply to your habeas corpus petition (1 page).
Your request for "the Attorney's Assignment Document (or same) for Docket No. 2004BX041944, under Indictment No. 3439/04" is granted. I have found 1 document responsive to this request. This document pertains to ADA Sandusky's assignment to respond to your CPL § 440.10 motion (1 page).
Each item disclosable under FOIL has a $0.25 per-page copying fee that cannot be waived. Please send me a check or money order made payable to the District Attorney's Office, Bronx County, in the amount of $1.75 (7 pages × $0.25). Please make full payment within the next 60 days.
DENIED
Your request for arraignment minutes for Docket Number 2004BX041944 and Indictment Number 3439/2004 is denied. Transcripts of court proceedings are not agency records, and are not subject to FOIL disclosure. See Matter of Moore v Santucci, 151 AD2d 677, 680 (1989); see also CPLR § 8002 (stenographers are entitled to a fee for transcribed copies of his or her stenographic notes). If you wish to obtain transcripts of any court proceedings, you should contact the Office of the Court Reporters, Supreme Court Bronx County, 851 Grand Concourse, Room 206, Bronx, NY, 10451.
Your requests for "the District Attorney's CPL § 730.10 motion" and the "Waiver of Appeal Document" are denied. These documents were not contained in either the Appeals or Habeas Corpus folders pertaining to Indictment Number 3821/2001. Furthermore, we have been unable to locate the trial folder pertaining to that case. An agency cannot disclose what it does not possess. See Matter of Adams v. Hirsch, 182 A.D.2d 583 (1st Dept. 1992); Ahlers v. Dillon, 143 A.D.2d 225, 226 (2d Dept. 1988). Additionally, "[n]othing in [the Freedom of Information Law] shall be construed to require any entity to prepare any record not possessed or maintained by such entity." Public Officers Law § 89(3); see In re Lugo v. Galperin, 269 A.D.2d 338 (1st Dept.) (ADA's statement "that he conducted a diligent search of the DA's file and did not find the requested documents . . . suffices to satisfy respondent's FOIL obligations"), lv. denied, 95 N.Y.2d 755 (2000). An agency may also deny a FOIL request if it cannot locate a record after a diligent search. See In re Lugo v. Galperin, 269 A.D.2d 338 (1st Dept.) (ADA's statement "that he conducted a diligent search of the DA's file and did not find the requested documents . . . suffices to satisfy respondent's FOIL obligations"), lv. denied, 95 N.Y.2d 755 (2000). In which case it must certify that "such record cannot be found after [a] diligent search" (Public Officers Law § 89[3]). Public Officers Law § 89(3) does not specify the manner in which an agency must certify that documents cannot be located. See Matter of Rattley v. New York City Police Dept., 96 N.Y.2d 873, 875 (2001).
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If you wish to appeal any portion of this FOIL determination, you must do so within 30 days of the date of this letter. Your appeal should be mailed to: Peter Coddington, Records Access Appeals Officer, Bronx District Attorney's Office, 198 East 161st Street, 10th Floor, Bronx, NY 10451.Rac
Sincerely, Rafael Curbelo FOIL Supervisor Bronx District Attorney's OfficeRECORDS CERTIFICATION
I, R.A. CURBELO, an Assistant District Attorney in the Office of Robert T. Johnson, the District Attorney of Bronx County, hereby certify pursuant to Public Officers Law Article 6 (the Freedom of Information Law), section 89(3):1. On July 22, 2010, Assistant District Attorney Robert Sandusky ordered the trial folder pertaining to the case of People v. Eddie Tarafa , Bronx County Indictment Number 3821/2001, by submitting a request to Appeals Bureau Case Aide P. Tiangco.
2. On August 4, 2010, former Records Access Officer Edwards ordered the trial folder pertaining to the case of People v. Eddie Tarafa , Bronx County Indictment Number 3821/2001, by submitting a folder request form to the archivists at City Storage.
3. On August 25, 2010, former RAO Edwards followed up the search for the trial folder by leaving a voice message with archivists D. Brown and A. Perkins of City Storage.
4. On October 21, 2010, I requested the trial folder by submitting a written request to Investigations Division Case Aide N. Camacho. According to ADA Sandusky, the folder was last with ADA Kapp of the Investigations Division in April of 2010.
5. On October 25, 2010, I received a call from Case Aide Camacho informing me that the folder was no longer with the Investigations Division. That same day, I submitted a written request for the folder to archivist A. Perkins of City Storage and R. Richard of Operations.
6. On October 27, 2010, I received a call from archivist A. Perkins informing me that the trial folder had been marked "Not In Bin" according to the logbook entry of March 30, 2010.
7. I hereby certify that despite these efforts, the trial folder pertaining to the case of People v. Eddie Tarafa , Bronx County Indictment Number 3821/2001, could not be located after a diligent search.
Dated: November 10, 2010Rac
R.A. Curbelo Assistant District Attorney Bronx District Attorney's Office