Matter of Whitfield v Bailey

Matter of Matter of Whitfield v Bailey 2012 NY Slip Op 00130 Decided on January 12, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 12, 2012
Mazzarelli, J.P., Andrias, Saxe, Freedman, Román, JJ.
110706/08 -5206

[*1]6546N-In re John Whitfield, 6547N-Petitioner-Appellant, 6547NA & M-5034-

v

Patricia J. Bailey, etc., Respondent-Respondent.




John Whitfield, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Richard
Nahas of counsel), for respondent.

Order, Supreme Court, New York County (Joan Madden, J.), entered June 24, 2010, which granted petitioner's motion to hold respondent in civil and criminal contempt to the extent of directing respondent to produce for in camera inspection "the file relating to the 1989 conviction of Richard Doyle on charges of petit larceny," order, same court and Justice, entered October 5, 2010, which, after an in camera inspection, directed respondent to provide petitioner the inspected documents, except for the one containing information about Doyle's prior convictions, with specified redactions, and order, same court and Justice, entered November 30, 2010, which denied petitioner's motion for reimbursement of his litigation costs, unanimously affirmed, without costs.

In the interest of justice, we nostra sponte grant petitioner leave to appeal from the aforesaid orders, which were "made in a proceeding against a body or officer pursuant to article 78" and therefore not appealable as of right (CPLR 5701[b]) (see Matter of Peckham v Calogero, 54 AD3d 27, 30-31 [2008], affd 12 NY3d 424 [2009]).

Petitioner failed to show by clear and convincing evidence that respondent willfully and deliberately violated a "clear and unequivocal mandate" of the court (see Collins v Telcoa Intl. Corp., 86 AD3d 549 [2011]). The September 2009 order directed respondent to submit for in camera inspection "the documents sought in petitioner's FOIL request"; contrary to petitioner's contention, it did not, by its terms, require that the entire case file on Doyle's 1989 conviction for petit larceny be submitted. In this regard, petitioner's FOIL request itself was somewhat equivocal; it sought both the entire file and only the specific records and documents it enumerated. Moreover, in addition to the documents, respondent submitted an affirmation by the assistant district attorney who retrieved the Doyle file, who certified that the documents constituted a complete copy of all documents in the possession of the District Attorney's Office that were responsive to petitioner's request.

Petitioner was not entitled to have the court issue the subpoenas he requested in his reply papers on the motion for contempt. Respondent had no opportunity to be heard on the matter (see CPLR 2307). In any event, petitioner failed to make the requisite showing "that the record requested actually contain[ed] the information he . . . [sought] to obtain" and that the subpoena was not "part of a fishing expedition or to ascertain the existence of evidence" (Bostic v State of [*2]New York, 232 AD2d 837, 839-840 [1996], lv denied 89 NY2d 807 [1997]).
Respondent's initial denial of petitioner's FOIL request was not "so unreasonable" as to justify an award of costs to petitioner under § 89(4) of the Public Officers Law (see Matter of Maddux v New York State Police, 64 AD3d 1069, 1070 [2009], lv denied 13 NY3d 712 [2009]; see also Matter of Whitfield v Bailey, 80 AD3d 417, 419 [2011]). Respondent relied not only on the regulations of the Department of Corrections, but also, reasonably, on Public Officers Law § 87(2), which authorizes an agency to deny access to records that, if disclosed, would constitute an "unwarranted invasion of personal privacy" (subd [b]) or "endanger the life and safety of any person" (subd [f]).

We have reviewed petitioner's remaining contentions and find them unavailing. M-5034 &

M-5206 - John Whitfield v Patricia J. Bailey Motion to dismiss appeal and cross motion for sanctions denied.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 12, 2012

CLERK