Opinion
2108.
Decided January 15, 2004.
Order, Supreme Court, New York County (Norma Ruiz, J.), entered on or about August 26, 2002, which denied petitioner's application pursuant to CPLR article 78 for an order compelling respondents to disclose certain materials under Article 6 of the Public Officers Law, also known as the "Freedom of Information Law" (FOIL), unanimously reversed, on the law, without costs, and the matter remanded for an in camera inspection of the requested documents to determine whether respondents assert applicable FOIL exemptions.
Pro Se.
David S. Weisel, for Petitioner-Appellant.
Before: Buckley, P.J., Tom, Ellerin, Williams, JJ.
Petitioner, serving a lengthy incarceration upon conviction after trial, seeks respondent prosecutor's interview notes containing a witness's statements made prior to his testimony at the trial. After almost two years of delay, respondents finally declined to provide said documents, citing as grounds the FOIL statutory exemption for endangerment of life and safety (Public Officers Law § 87[f]) and the public interest privilege, which protects statements made by a witness to prosecutors ( Matter of Kassebaum v. Morgenthau, 270 A.D.2d 71, lv denied 95 N.Y.2d 756; Sanchez v. City of New York, 201 A.D.2d 325).
Although petitioner has not shown "`a compelling and particularized need for access'" ( Sanchez, 201 A.D.2d at 326, quoting Matter of District Attorney of Suffolk Cty., 58 N.Y.2d 436, 444), he has shown that many of the documents sought had been provided to his trial counsel, who claims that he no longer possesses them ( see Kassebaum, 270 A.D.2d 71; Matter of Huston v. Turkel, 236 A.D.2d 283, lv denied 90 N.Y.2d 809). Moreover, respondent has failed to show how providing the documents to petitioner would additionally endanger the witness, whose identity was known at all times by petitioner and his co-defendants, who are also serving lengthy sentences. Given these circumstances, this matter should be remanded for an in camera inspection of the documents and a determination as to whether respondents properly denied petitioner's request ( see Matter of Johnson v. New York City Police Dept., 257 A.D.2d 343, 349, lv dismissed 94 N.Y.2d 791; Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.