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MATTER HARDY BROWNELL v. WILLIAM V. GRADY (03/23/90)

SUPREME COURT OF NEW YORK, DUTCHESS COUNTY Index No. 1989/4708 1990.NY.43302 <http://www.versuslaw.com>; 554 N.Y.S.2d 382; 147 Misc. 2d 105 March 23, 1990 IN THE MATTER OF HARDY BROWNELL, PETITIONER,v.WILLIAM V. GRADY, AS DISTRICT ATTORNEY OF DUTCHESS COUNTY, RESPONDENT Hardy Brownell, petitioner pro se. Alfred Tallakson, Assistant District Attorney, for William V. Grady, respondent. Damian J. Amodeo, J. Author: Amodeo


Damian J. Amodeo, J.

Author: Amodeo

 OPINION OF THE COURT

Petitioner commenced this proceeding pursuant to CPLR article 78 to compel respondent to disclose documents under the Freedom of Information Law (Public Officers Law ยง 84 et seq. [hereinafter FOIL]). The following papers were read and considered in determining this application: (1) order to show cause; (2) verified petition and exhibits; (3) answering affirmation; and (4) affidavit in reply to respondent's affirmation.

FACTUAL BACKGROUND

The documents requested by petitioner relate to his conviction for murder in the second degree (Dutchess County indictment Number 53/74) and fall into two categories: (1) all statements made to any law enforcement personnel and (2) all investigative reports, including notebook records. The initial request was made by letter to the Dutchess County Sheriff on December 9, 1988. Petitioner was advised that the information was not on file with that agency and was referred to the District Attorney's office. By letter dated January 12, 1989, petitioner made a request directly to William Grady, the Dutchess County District Attorney. As of February 28, 1989 he had received no response and sent a letter to the County Attorney, administratively appealing the District Attorney's failure to reply. Almost one month later, Mr. Brownell was informed by the County Attorney that respondent was examining his request and that the review process was taking more time than expected because the files were voluminous. On May 8, 1989 petitioner again wrote to the County Attorney to ascertain the status of his FOIL request. Apparently, no response was received and on July 7, 1989 petitioner renewed his appeal to the County Attorney, who then advised petitioner that he would have a response by August 15, 1989. Again, the only information given to petitioner was that the files were extensive.

On August 29, 1989 Mr. Brownell informed the County Attorney that no response had been received from the District Attorney, despite the promise of one by August 15, 1989. He received neither an answer to that letter nor a response from Mr. Grady.

Mr. Brownell thereafter commenced this article 78 proceeding by order to show cause dated November 2, 1989. Respondent has submitted an "affirmation in answer" signed by Assistant District Attorney Alfred Tallakson. Respondent does not deny any of the allegations contained in the petition. Rather, for the first time, objections are raised to petitioner's request on the merits. After reciting a synopsis of the history of Mr. Brownell's criminal case, respondent argues that: (1) petitioner already possesses most of the material requested; (2) as to those witness statements he does not possess, his demand should be more specific; (3) Grand Jury material is not subject to disclosure; (4) several hundred sheets of material which record statements of persons interviewed or who testified will be made available to the court for an in camera review; (5) no notebook records exist; (6) investigative reports may contain privileged material and therefore should also be turned over to the court for an in camera review; and (7) ...


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