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Ortiz v. Zugibe

Supreme Court, Appellate Division, Second Department, New York.
Nov 16, 2016
41 N.Y.S.3d 125 (N.Y. App. Div. 2016)

Opinion

11-16-2016

In the Matter of Juan ORTIZ, appellant, v. Frederick T. ZUGIBE, etc., et al., respondents.

Juan Ortiz, Ossining, NY, appellant pro se. Thomas E. Humbach, County Attorney, New City, NY (Matthew J. Byrne of counsel), for respondents.


Juan Ortiz, Ossining, NY, appellant pro se.

Thomas E. Humbach, County Attorney, New City, NY (Matthew J. Byrne of counsel), for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.

In a proceeding pursuant to CPLR article 78 to compel the production of certain documents pursuant to the Freedom of Information Law (Public Officers Law art. 6), the petitioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Rockland County (Garvey, J.), dated March 25, 2014, as denied that branch of the petition which sought production of documents from the office of the Rockland County District Attorney.

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner is currently incarcerated pursuant to a judgment of conviction rendered January 16, 2003. In order to pursue certain post-conviction relief, the petitioner sought certain documents and evidence from, among others, the office of the Rockland County District Attorney pursuant to the Freedom of Information Law (Public Officers Law art. 6; hereinafter FOIL). After being provided with some, but not all, of the requested material, the petitioner commenced this proceeding pursuant to CPLR article 78 to compel the production of the withheld material. The Supreme Court denied that branch of the petition which sought the disclosure of statements made by nontestifying witnesses in connection with the petitioner's criminal case. The petitioner appeals.

“FOIL requires that state and municipal agencies ‘make available for public inspection and copying all records,’ subject to certain exemptions” (Matter of Madera v. Elmont Pub. Lib., 101 A.D.3d 726, 727, 957 N.Y.S.2d 129, quoting Public Officers Law § 87[2] ; see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 ; Matter of Brown v. DiFiore, 139 A.D.3d 1048, 33 N.Y.S.3d 327 ; Matter of Friedman v. Rice, 134 A.D.3d 826, 828, 20 N.Y.S.3d 600 ). “Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access” (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 ; see Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 18 N.Y.3d 652, 657, 944 N.Y.S.2d 429, 967 N.E.2d 652 ; Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d at 462, 849 N.Y.S.2d 489, 880 N.E.2d 10 ; Matter of Friedman v. Rice, 134 A.D.3d at 828, 20 N.Y.S.3d 600; Matter of Madera v. Elmont Pub. Lib., 101 A.D.3d at 727, 957 N.Y.S.2d 129 ).

Here, since statements of nontestifying witnesses are confidential and are not disclosable under FOIL, the Supreme Court properly denied that branch of the petition which sought the disclosure of those statements (see Public Officers Law § 87[2][e][iii] ; Matter of Zarvela v. Banks, 117 A.D.3d 1070, 1071, 986 N.Y.S.2d 340 ; Matter of Esposito v. Rice, 67 A.D.3d 797, 797–798, 888 N.Y.S.2d 178 ).

The petitioner's remaining contentions are without merit.


Summaries of

Ortiz v. Zugibe

Supreme Court, Appellate Division, Second Department, New York.
Nov 16, 2016
41 N.Y.S.3d 125 (N.Y. App. Div. 2016)
Case details for

Ortiz v. Zugibe

Case Details

Full title:In the Matter of Juan ORTIZ, appellant, v. Frederick T. ZUGIBE, etc., et…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Nov 16, 2016

Citations

41 N.Y.S.3d 125 (N.Y. App. Div. 2016)
144 A.D.3d 919
2016 N.Y. Slip Op. 7655

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