In the Matter of the Application of DOMINGO ESPIRITU, Petitioner,
CYRUS R. VANCE JR., District Attorney of New York County, Respondent. For a Judgment under Article 78 of the CPLR Practice Law and Rules, Index No. 402193/12
Petitioner Domingo Espiritu commenced this Article 78 proceeding representing himself to reverse the District Attorney's denial of his Freedom of Information Law (FOIL) request for certain documents related to his criminal conviction. Respondent District Attorney of New York County (DANY) has opposed on the ground that it properly denied Espiritu's request based on several exemptions permitted under FOIL.
Petitioner Domingo Espiritu is incarcerated in state prison on convictions of second-degree murder, first-degree assault, second-degree weapon possession, and two counts of second-degree assault. (Verified Ans.,
¶2). Mr. Espiritu filed a FOIL request with DANY's Records Access Officer seeking approximately 64 categories of documents pertaining to his criminal case by letter dated March 19, 2012. (Answer, Exh A). Mr. Espiritu divided his request into three parts as follows: Part One Specific Requests, Part Two Discovery Materials, and Part Three Specific Request. Although Mr. Espiritu did not explain what he intended by these titles, it appears that Part One relates to the police investigation, Part Two relates to documents connected with his trial, and Part Three asks DANY to provide him with certain information, such as the name of the agency in possession of particular documents, should DANY be unable to fulfill his request.
Assistant District Attorney Laura Greenberg informed Mr. Espiritu in a letter dated April 13, 2012 that she had received his request and was reviewing nine boxes of documents in order to respond. (Exh B). She added that she would update him on the status of her work on or before May 11, 2012. In a similar letter dated May 10, 2012, she wrote that processing Mr. Espiritu's request had taken longer than expected and she would render a determination or provide an update by June 4, 2012. (Exh C). On May 14, 2012, Mr. Espiritu appealed, apparently deeming the delay a constructive denial of his request. (Exh D). On May 29, 2012, ADA Susan C. Roque denied Mr. Espiritu's appeal because ADA Greenberg had informed him in her May 10, 2012 letter that she was still evaluating his voluminous request. (Exh E).
In a letter dated June 1, 2012, after detailing Mr. Espiritu's "heinous crimes" which involved a shooting at a public pool, ADA Greenberg granted one aspect of Mr. Espiritu's FOIL request but denied it in substantial part. (Exh F). The ADA granted the request for documents in category 3 of Part Two and provided 6 pages of Defendant's Omnibus Motion which his attorney had made at his criminal trial and 8 pages of the People's Affirmation in Response to the Defendant's Omnibus Motion. Everything else was denied in reliance on specific exemptions from FOIL in the Public Officers Law.
The ADA denied categories 1-4, 6-9, 12, 14, 17, and 23 from Part One of Mr. Espiritu's request and categories 1, 4-6, 8-26, 34, 36, and 40 from Part Two on the ground that the documents had already been provided to Mr. Espiritu's attorney during his criminal trial. Relying on Moore v Santucci, 151 A.D.2d 677 (2nd Dep't 1989), the ADA asserted that FOIL "does not require the District Attorney to provide duplicates of that which was previously provided." (Exh F). The ADA included copies of the lists of documents that had been provided to Mr. Espiritu's counsel at trial to prove that the documents had, in fact, been previously provided. (Exh G).
The ADA articulated a second ground for denying these documents, stating that "to the extent that these documents contain witness statements, they are covered by the public interest privilege." (Exh F). Citing cases such as Sanchez v City of New York, 201 A.D.2d 325, 326 (1st Dep't 1994), the ADA stated that the purpose of this privilege was to enable governmental entities to encourage witnesses to come forward and cooperate with investigations without fear of reprisal. Additionally, citing Johnson v Hynes, 264 A.D.2d 777 (2d Dep't 1999), the ADA asserted that: "Statements of non-testifying witnesses are confidential and not discoverable under F.O.I.L."
The ADA denied a second group of documents, including categories 5, 10-11, 13, 14, 16, 18-22, and 24 from Part One of Mr. Espiritu's request and categories 7, 33, 35, and 37-39 from Part Two, on the ground that "no such document exists in the case file." Citing to Public Officers Law §86(4) and 89(3), ADA Greenberg stated that: "The District Attorney's Office cannot provide documents that do not exist or that we do not possess."
ADA Greenberg denied Mr. Espiritu's request for autopsy reports and related items in categories 27-32 from Part Two, citing County Law §677 and New York City Charter §557 and asserting that the requested items were "exempt from disclosure by operation of law." (Exh F).
Finally, ADA Greenberg denied category 16 from Part One and category 2 from Part Two, interpreting the requested documents to consist of court transcripts. ADA Greenberg cited Matter of Roque v Kings County District Attorney's Office, 12 A.D.3d 374 (2nd Dep't 2004) and Moore v Santucci, supra, stating that; "The respondent is not required to make available for inspection or copying any suppression hearing or trial transcripts of a witness' testimony in its possession, because the transcripts are court records not agency records."
On June 21, 2012 Mr. Espiritu appealed ADA Greenberg's substantial denial of his request. (Exh H). Noting that Greenberg had "blatantly delved into an emotional litany of details pertaining to this case, " Mr. Espiritu claimed that the ADA was biased against him based on the nature of his crimes. Additionally, he explained that he had been unable to obtain any of the documents from his trial counsel David Blackstone, as Mr. Blackstone had passed away and no one in his office was available to assist him.
Not having received any response to his appeal, Mr. Espiritu commenced the instant Article 78 proceeding in or about October of 2012, alleging that his FOIL appeal had been constructively denied because more than 60 days had passed and he had not received a determination. (Affidavit in Support of Order to Show Cause, 1J5). By letter dated November 14, 2012, before respondent filed an Answer in this proceeding, ADA Susan Roque decided Mr. Espiritu's appeal. (Exh ...