Decision, Order and Judgment Petitioner Michael Cobb, an inmate at Green Haven Correctional Facility, brings this Article 78 proceeding by order to show cause, for an order directing respondent New York City Police Department (“NYPD”) to disclose records pertaining to the investigation of a crime for which he was convicted pursuant to New York’s Freedom of Information Law (“FOIL”), New York Public Officers Law §84, et seq. In lieu of an answer, NYPD cross-moves to for an order dismissing the petition on several grounds. For the reasons set forth below, the petition is denied and respondent’s cross-motion to dismiss is granted.Factual BackgroundPetitioner was arrested by the NYPD on August 10, 1991, and subsequently convicted in Kings County Supreme Court under indictment number 10070/1991 of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in both the second and third degrees. Petitioner is currently serving an aggregate minimum sentence of 42 years to a maximum sentence of life for these crimes. On April 14, 2014, petitioner filed a federal writ of habeas corpus in the United States District Court, Eastern District of New York, in which he seeks to litigate the legality of his detention that resulted from his conviction and sentence for the aforementioned murder, robbery, and criminal possession of a weapon. The federal proceeding is still pending.By letter dated November 3, 2014, petitioner requested access to records generated during the law enforcement investigation and criminal prosecution that relate to his August 10, 1991 arrest and conviction (hereinafter, 2014 FOIL request). Petitioner specifically sought access to one hundred and eighty-nine categories of records including access to all records that he deemed “all case preparation forms.” By letter dated January 15, 2015, Records Access Officer (RAO) Richard Mantellino granted petitioner access to records relating to a homicide for which petitioner was arrested under the name of Michael Cobb. The records related to a homicide for which the victim was not John Calloway. Subsequent correspondence from petitioner clarified that he sought records relating to the investigation and prosecution arising from the murder of John Calloway. On February 5, 2015, the NYPD received a letter from petitioner administratively appealing the RAO’s January 15, 2015 determination wherein petitioner clarified that he sought records relating to his arrest for a different homicide, specifically, the homicide investigation into the murder of John Calloway for which petitioner was arrested on August 10, 1991. By letter dated February 5, 2016, the RAO provided access to the complaint report, arrest report, and complaint follow-up reportsBy letter dated February 19, 2016, petitioner administratively appealed the February 5, 2016 determination. On February 20, 2016, immediately following the drafting of his appeal of his 2014 request, petitioner submitted another FOIL request (hereinafter 2016-A FOIL request), in which he sought access to a subset of records sought in petitioner’s initial 2014 FOIL request. Specifically, petitioner sought access to twenty-three categories of records pertaining to his indictment under Kings County Indictment number 10070/91 for the murder of John Calloway, robbery, and criminal possession of a weapon. Petitioner again sought access to investigative records and documents relating to the witnesses who testified at his criminal trial and the relocation of witnesses. While petitioner’s appeal of his 2014 FOIL request was still pending, the RAO denied petitioner’s February 20, 2016 request as duplicative of petitioner’s 2014 FOIL request.Petitioner filed another FOIL request dated February 24, 2016 (hereinafter 2016-B FOIL request), seeking additional documents and asked that this request be accepted as an addendum to his previous request dated February 20, 2016 (2016-A FOIL request). According to the record, petitioner sought access to thirty categories of records, twenty-three of which had been requested in the 2016-A FOIL request, and all of which were a subset of the records sought in petitioner’s initial 2014 FOIL request. On March 11, 2016, the RAO denied petitioner’s request that his February 24, 2016 be accepted as an addendum to his previous request and assigned it a different FOIL request number. By letter dated March 15, 2016, the RAO denied the 2016-B FOIL request as duplicative of his prior request. Subsequently, on April 20, 2016, petitioner administratively appealed the RAO’s March 15, 2016 determination.By letter dated June 15, 2016, Records Access Appeals Officer denied petitioner’s appeal of the 2014 request on the grounds that (1) pursuant to Public Officers Law §87(2)(i), disclosure of such records would interfere with pending judicial proceedings; (2) pursuant to Public Officer’s Law §87(2)(f), the records contained information that could endanger the life or safety of a person; (3) pursuant to Public Officer’s Law §87(2)(b) and 89(2), disclosure of records would constitute an unwarranted invasion of privacy; (4) pursuant to Public Officer’s Law §87(2)(e)(iii), certain records would reveal confidential information; and (5) pursuant to Public Officer’s Law §87(2)(iv), disclosure of records would reveal non-routine criminal investigative techniques. The Appeals Officer further informed petitioner, in the June 15, 2016 decision, that he may seek judicial review by commencing an Article 78 proceeding within four months of the date of the decision.By letter dated August 15, 2016, the Appeals Officer denied petitioner’s appeal of the RAO’s March 15, 2016 determination on various grounds including that the request was duplicative of prior FOIL requests.Thereafter, petitioner commenced the instant Article 78 proceeding by Order to Show Cause dated December 15, 2016. In the Order, Justice Frank P. Nervo permitted service by first class mail but directed petitioner to serve a copy of the order and the petition commencing the instant Article 78 proceeding upon respondent, the Attorney General, and the Corporation Counsel by January 17, 2017. In addition, the Order directed petitioner to file proof of service with the Motion Support Office prior to the return date. Petitioner seeks an order reversing the Appeals Officer’s denial of his request and directing respondent to release the requested documents free of charge. He maintains that respondent’s determination is arbitrary and capricious as the records petitioner requested are not exempt from disclosure, and should be disclosed so that he can prove his innocence.DiscussionIn accordance with the desire to encourage “open government” (Matter of Newsday, Inc. v. Empire State Dev. Corp, 98 NY2d 359, 362 [2002]; Public Officers Law §84) and “public accountability” (Matter of Gould v. New York City Police Dept., 89 NY2d 267, 274 [1996]), FOIL generally “mandates all agencies to make records available to the public (Matter of Empire Realty Corp. v. New York State Div. of Lottery, 230 AD2d 270, 272 [1997]), unless the material being sought falls within a statutory exemption (Matter of Gould, 89 NY2d at 275). The agency seeking to prevent disclosure has the burden to establish the applicability of an exemption (Id. at 274-275). Withholding disclosure requires that “the material requested falls squarely within the ambit of one of these statutory exemptions” (Id. at 275).CPLR §217 (1) requires that an Article 78 proceeding against a body or officer be commenced within four months of the day the determination has become final or after the respondent has refused to perform a duty imposed by law (see CPLR §217[1]). A petitioner cannot use a subsequent duplicative request for the same set of records to extend or to toll the statute of limitations (Matter of Kelly v. New York City Police Dept., 286 AD2d 581 (1st Dept 2001); Matter of Andrade v. New York City Police Dept., 106 AD3d 520 [1st Dept 2013]). When a FOIL request duplicates an earlier FOIL request, the proceeding is “properly dismissed as a related attempt to seek judicial review of the denial of the first request” (Matter of Mendez v. New York City Police Dept, 260 AD2d 262-263 (1st Dept 1999).In the instant action, the petition must be dismissed as it is time-barred. Respondent made the final determination denying petitioner’s appeal on June 15, 2016, which is when the fourmonth statute of limitations began to run as the date of the letter of denial by the Appeals Officer triggers commencement of the four-month limitations period (see Swinton v. Records Access Officer, 98 AD2d 165 [1st Dept 1993]). Thus, petitioner’s time to challenge the denial of his FOIL request expired on October 15, 2016. However, petitioner did not commence the instant proceeding until December 15, 2016, more than four months after the statute of limitations period has run.Petitioner’s assertion that the untimely commencement of this proceeding was beyond his control and any defect should be excused is unpersuasive. Pursuant to CPLR §304(a), commencement of an Article 78 proceeding occurs when a petition is filed with a county clerk (see Matter of Grant v. Senkowski, 95 NY2d 605, 608 [2001]). Such filing interposes a petitioner’s claims against the respondent for the purposes of the statute of limitations (see CPLR §203[c]); see also Matter of Grant at 95 NY2d at 508). Furthermore, the filing of pleading papers will not be accepted if the required fee has not been paid (see CPLR §304[c]). Pursuant to CPLR §1101(f), pro se prisoners may commence a proceeding by paying a reduced filing fee. However, if an inmate chooses to commence his action by paying a reduced fee, “such inmate shall file the form affidavit…along with the summons…or petition…or order to show cause” (CPLR §1101[f]). Petitioner alleges that he timely mailed his Article 78 petition but it was returned to him to use updated forms for the poor person application. He further claims that by the time he received his rejected papers back from the court, the statutory time to file new papers had passed. Petitioner asks this Court to exercise its discretion to forgive the mistakes he has made in commencing the litigation. However, the Court notes that it is without authority to extend the applicable statute of limitations no matter how meritorious the reasons for the delay may be (see CPLR §201). As petitioner failed to timely file the required papers and failed to timely pay the requisite fee, he is now time-barred from doing so.Additionally, petitioner’s 2016-A and 2016-B FOIL requests seek the same records requested in his 2014 FOIL request. In the 2014 FOIL request, petitioner sought access to all records in the NYPD’s possession that could have been generated during the enforcement and criminal prosecution relating to petitioner’s arrest on August 10, 1991. The Court notes that petitioner’s 2014 FOIL request sought access to a wide-ranging list of records including “all memo book entries, all recorded statements/defendants and witnesses, all audio tape statements (including the actual tapes and transcripts), all case preparation forms, and all handwritten notes of all interviews” in addition to over 175 other records. Similarly, the 2016-A and 2016-B FOIL requests sought inter alia memo books, statements, interview notes, and audio recordings stemming from the same indictment number, but identified specific detectives and witnesses with whom these records related to. For example, petitioner requested “[a]ny and all memo book entries for all detectives/officers involved in the case, specifically but not limited to Detective Cinalli, Detective Ferguson, Detective Garcia, Detective Sullivan, and Sloan” (respondent’s exhibit 8).Petitioner’s 2016-A and 2016-B FOIL requests each sought access to an identical albeit more detailed sub-set of records already requested in Petitioner’s 2014 FOIL request, which essentially sought all records in the NYPD’s possession that could have been generated during the investigation and prosecution that led to petitioner’s August 10, 1991 arrest and subsequent conviction. Petitioner’s assertion that respondent should have accepted his February 24, 2016 FOIL request (2016-B FOIL request) as an addendum to his previous FOIL request dated February 20, 2016 (2016-A FOIL request) is unavailing. Respondent asserts that petitioner’s demand that his 2016-B FOIL request be treated as an addendum could not be accommodated by the FOIL Unit because more than 383 FOIL requests had been received by the FOIL Unit in the interim between the receipt of the 2016-A FOIL request and the 2016-B FOIL request. Even if the FOIL Unit accepted petitioner’s 2016-B FOIL request as an addendum, both requests are duplicative of his initial 2014 FOIL request. A subsequent FOIL request that is more specific than a prior request is considered duplicative (see Matter of Garcia v. Div. of State Police, 302 AD2d 755, 756 [3d Dept 2003]). Consequently, petitioner cannot revive his right to administrative review or judicial review of his broad 2014 FOIL request by making a subsequent, more specific duplicative request for the same information previously requested (Matter of McGriff v. Bratton, 293 AD2d 401, 402 [1st Dept 2002])Moreover, even if the instant petition was timely, which it is not, it must be dismissed as petitioner failed to obtain personal jurisdiction over the respondent. Pursuant to CPLR §403(b), which applies to all special proceedings, “[a] notice of petition, together with petition and affidavits specified in the notice, shall be served on any adverse party…” Further, pursuant to CPLR §403(d), “[t]he court may grant an order to show cause to be served, in lieu of a notice of petition at the time and in a manner specified therein.” In this case, the Order to Show Cause, signed by Justice Frank P. Nervo, provided service by mail, on or before January 17, 2017 “of this order and the papers upon which this order is granted, upon the respondent…(and the Corporation Counsel).” However, petitioner failed to serve the papers on the Corporation Counsel. Petitioner’s failure to serve Corporation Counsel with any papers requires dismissal of the petition (see Matter of Sorli v. Coveney, 51 NY2d 713, 714 [1980] [holding that the petition should have been dismissed as "petitioner failed to follow the provisions for service specified in the order to show case"]).In any case, were I to reach the merits, this Court would agree with the Appeals Officer’s June 15, 2016 denial because disclosure of the sought materials would have interfered with petitioner’s federal habeas petition pending before the United States District Court in the Eastern District of New York. FOIL exempts from disclosure documents compiled for law enforcement purposes, which, if disclosed would interfere with a judicial proceeding (Public Officers Law §87[2][e][i]). While respondent claims that the disclosure of these materials would interfere with that pending proceeding, petitioner has failed to cite to any law that militates for such disclosure in the face of the claimed interference. In contrast, the New York State Supreme Court recognizes a proceeding brought by way of a writ of habeas corpus, as well as appeals of denials of writs of habeas corpus as judicial proceedings (see Dhinsa v. New York City Police Dept., Index No. 102689/04 [Sup. Ct. NY Co. 2004]).In accordance with the foregoing, it is herebyORDERED and ADJUDGED that the cross-motion to dismiss by the New York City Police Department is granted; and it is furtherORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed in its entirety; and it is furtherORDERED that counsel for the respondent must serve a copy of this order with notice of entry on County Clerk’s office, which is directed to dismiss the petition.This constitutes the Decision and Order of the Court.Dated: May 30, 2018
