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Whitfield v. Moriello

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 2, 2010

IN RE JOHN WHITFIELD, PETITIONER-APPELLANT,
v.
STEPHEN J. MORIELLO, RECORD ACCESS OFFICER, INDIVIDUALLY AND AS A MEMBER OF THE NEW YORK CITY DEPARTMENT OF CORRECTIONS, RESPONDENT-RESPONDENT.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about May 22, 2009, which denied petitioner's Freedom of Information Law application to compel respondent to provide petitioner with access to copies of New York City Department of Correction records pertaining to the confinement of another individual, and to find respondent in contempt for failing to provide petitioner with such records, unanimously affirmed, without costs.

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.

Friedman, J.P., Moskowitz, Renwick, Freedman, RomÁn, JJ.

401458/08

Assuming the court's interim order was correct in directing additional details of respondent's unsuccessful search for the subject records (but see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001] [neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required]), respondent satisfied such directive by providing affidavits from two of its officers stating that they had diligently searched the two facilities where the records might be stored, and documents showing that, prior to petitioner's FOIL request, 2050 boxes of inmate records stored in one of the facilities had been ruined in a flood and destroyed pursuant to administrative order. Nothing in the record supports petitioner's assertion that the records he seeks have been preserved on CD-ROM. We have considered petitioner's other contentions and find them unavailing.

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

20100302

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