Cobado v. Benziger

• Decision Date: 05 July 2018
• Docket Number: 524987
• Citation: 163 A.D.3d 1103,80 N.Y.S.3d 529
• Parties: In the Matter of Matthew M. COBADO, Appellant, v. Debra L. BENZIGER, as Records Access Officer of the State Police, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1103
80 N.Y.S.3d 529

In the Matter of Matthew M. COBADO, Appellant,
v.
Debra L. BENZIGER, as Records Access Officer of the State Police, et al., Respondents.

524987

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 29, 2018
Decided and Entered: July 5, 2018

80 N.Y.S.3d 531

Matthew M. Cobado, Attica, appellant pro se.

Barbara D. Underwood, Attorney General, Albany (Frederick A. Brodie of counsel), for respondents.

Before: Garry, P.J., McCarthy, Clark, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the Supreme Court (McNally Jr., J.), entered March 13, 2017 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted respondents' motion to dismiss the petition.

On June 18, 2015, petitioner, an inmate at a state correctional facility, submitted a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL] ) request to the State Police seeking documents pertaining to a confidential informant involved in his 2002 criminal trial, including arrest reports, confidential informant sheets and cooperative agreements (see People v. Cobado, 16 A.D.3d 1114, 1114, 792 N.Y.S.2d 753 [2005], lv denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975 [2005] ). In response, respondent Debra L. Benziger, the Lieutenant and Records Access Officer with the State Police at the time, sent petitioner a letter, dated June 25, 2015, acknowledging receipt of his request and informing him that, due to the volume of requests received and being processed, a written response would be sent to him on or before December 10, 2015. Petitioner did not receive a response on that date and, 10 days later, he sent Benziger a follow-up letter. On January 14, 2016, Benziger responded to petitioner's June 2015 request, indicating, among other things, that she was unable to conduct a search for the requested documents because petitioner did not "reasonably describe the records" he sought, including failing to provide the confidential informant's date of birth. Benziger additionally provided petitioner with information regarding the administrative appeal process.

Petitioner did not appeal from the foregoing determination at that time. Rather, on January 30, 2016, he submitted a second FOIL request, providing, in relevant part, the confidential informant's date of birth. On February 18, 2016, Benziger again confirmed receipt of petitioner's request and responded that, due to the volume of requests, a written response would be sent on or before August 1, 2016. However, on March 30, 2016, petitioner sent Benziger a letter complaining of the cumulative time that had elapsed since his first request and stating that she had 10 working days to respond to the "constructive denial" of said request before he commenced a CPLR article 78 proceeding. On May 10, 2016, after receiving no response from Benziger, petitioner administratively appealed from the alleged constructive

80 N.Y.S.3d 532

denial of his June 2015 FOIL request and thereafter commenced this proceeding on August 29, 2016 challenging same.

On October 4, 2016, petitioner received a determination on his administrative appeal, which was treated as an appeal from "the purported constructive denial" of his January 2016 request. In particular, petitioner's document request was granted to the extent of permitting him to obtain two incident and arrest reports relating to the confidential informant, upon his payment of the statutory processing fees (see Public Officers Law § 66–a [2 ] ), but his request for the remaining responsive documents was denied on the basis that they were exempt from disclosure (see Public Officers Law § 87[2][b], [e][iii], [iv] ). Following this administrative determination, respondents moved to dismiss the petition, arguing that the CPLR article 78 proceeding was moot. Petitioner opposed the motion and requested associated "costs and fees," as well as an order imposing sanctions upon respondents. Supreme Court granted respondents' motion, dismissing the petition as moot, and denied petitioner's request for costs, fees and sanctions. Petitioner now appeals.

We agree with Supreme Court that the CPLR article 78 proceeding has been rendered moot. "Where a petitioner receives an adequate response to a FOIL request during the pendency of his or her CPLR article 78 proceeding, the proceeding should be dismissed as moot because a determination will not affect the rights of the parties" ( Matter of DeFreitas v. New York State Police Crime Lab, 141 A.D.3d 1043, 1044, 35 N.Y.S.3d 598 [2016] [citations omitted]; see Matter of Braxton v. Commissioner of N.Y. City Police Dept., 283 A.D.2d 253, 253, 724 N.Y.S.2d 608 [2001] ; see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). After petitioner commenced this proceeding, Benziger complied with petitioner's FOIL request by providing him with certain documents and withholding others as exempt from disclosure. Thus, to the extent that petitioner seeks relief from this Court regarding the alleged constructive denial of his request, the matter has become moot (see Matter of Almodovar v. Altschuller, 232 A.D.2d 700, 700, 647 N.Y.S.2d 1010 [1996] ; Matter of Newton v. Police Dept. of City of N.Y., 183 A.D.2d 621, 623, 585 N.Y.S.2d 5 [1992] ), and the exception to the mootness doctrine is inapplicable (see Matter of VanAmburgh v. Kinowski, 84 A.D.3d 1552, 1553, 922 N.Y.S.2d 640 [2011], lv denied 17 N.Y.3d 714, 2011 WL 4976971 [2011] ; Matter of Covington v. Cirincione, 307 A.D.2d 554, 554, 762 N.Y.S.2d 295 [2003] ). Insofar as petitioner seeks review of the partial denial of his FOIL request, he has failed to exhaust his administrative remedies (see Matter of Covington v. Cirincione, 307 A.D.2d at 554, 762 N.Y.S.2d...