Matter of Franklin v Schwartz

Matter of Franklin v Schwartz 2008 NY Slip Op 09908 [57 AD3d 338] December 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Frederick Franklin, Appellant,
v
Ann Schwartz, as Records Access Officer of the New York County District Attorney's Office, Respondent.

—[*1] Frederick Franklin, appellant pro se.

Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), for respondent.

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered March 5, 2007, which denied petitioner's motion to hold respondent, the Records Access Officer of the New York County District Attorney's Office, in contempt for disobedience of this Court's prior order directing disclosure pursuant to the Freedom of Information Law (FOIL) (decided sub nom. Matter of Franklin v Miner, 21 AD3d 276 [2005], lv denied 7 NY3d 735 [2006]), unanimously affirmed, without costs.

No reason appears to doubt respondent's assertion that despite an extensive search of the District Attorney's case files relating to the three indictment numbers specified in petitioner's requests, she was unable to locate the requested minutes of a 1982 plea taken by a certain witness at petitioner's trial. Indeed, it appears from the parties' extensive correspondence that respondent at all times endeavored to comply with petitioner's requests in accordance with this Court's prior order—she ordered and reviewed various case files in an attempt to locate the requested plea minutes; she located and turned over related documents, including the minutes of the witness's sentencing; and she credibly explained to respondent that the District Attorney's Office does not order the transcript of every court proceeding. Respondent's statement that she was unable to find the requested documents, despite a diligent search, sufficed to satisfy the District Attorney's obligations under FOIL, which, by its terms, does not require an entity to prepare records it does [*2]not possess or maintain (Public Officers Law § 89 [3]; see Matter of Lugo v Galperin, 269 AD2d 338 [2000], lv denied 95 NY2d 755 [2000]). Concur—Lippman, P.J., Tom, Buckley, Moskowitz and Renwick, JJ.