                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     521999
________________________________

In the Matter of NAKIA ROSE,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ALBANY COUNTY DISTRICT
   ATTORNEY'S OFFICE,
                    Respondent.
________________________________


Calendar Date:   May 24, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

                             __________


      Law Office of Joel B. Rudin, New York City (Steven R.
Aquino of counsel), for appellant.

      Daniel Lynch, County Attorney, Albany (Tracy Murphy of
counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from that part of an order and judgment of the
Supreme Court (Walsh, J.), entered May 1, 2015 in Albany County,
which partially dismissed petitioner's application, in a
proceeding pursuant to CPLR article 78, to review a determination
of respondent denying petitioner's Freedom of Information Law
request.

      The facts of this case are more fully discussed in a
previous decision by this Court (111 AD3d 1123 [2013]).
Petitioner was convicted of numerous crimes in connection with a
drug-related shooting and robbery in the City of Albany (People v
Rose, 72 AD3d 1341 [2010], lv dismissed 16 NY3d 745 [2011]), and
he thereafter submitted a request to respondent pursuant to the
                              -2-                521999

Freedom of Information Law (see Public Officers Law art 6
[hereinafter FOIL]) seeking disclosure of 29 categories of
documents relating to the criminal investigation that led to his
conviction. Respondent denied the request for the documents, and
petitioner then initiated this CPLR article 78 proceeding.
Although petitioner thereafter received some of the requested
documents, Supreme Court (Devine, J.) upheld the denial of other
documents. In addressing petitioner's subsequent appeal, this
Court held, among other things, that remittal was necessary for
an in camera inspection of the documents with regard to two of
the categories of documents that petitioner had requested,
specifically petitioner's request numbers 13 and 21 (111 AD3d at
1126-1127). Petitioner's request number 13 sought "[a]ll notes,
memos, teletypes, letters, records, and other communications
to/from the State police, Albany police, Albany Dept. of Public
Safety, or federal authorities regarding [petitioner] and/or the
investigation underlying the charges against him," while his
request number 21 sought "[a]ll letters or communications written
by any employee of [respondent], or on its behalf, to any
governmental agency or private entity concerning any prosecution
witness, including but not limited to letters and communications
to the Division of Parole, Probation Department, Human Resources
Administration, NYC Housing Authority, Department of Homeland
Security, and Immigration."

      On remittal, Supreme Court (Walsh, J.) conducted a
comprehensive in camera inspection of all 257 documents provided
by respondent. Along with providing a detailed description of
each document and the basis for the disclosure or nondisclosure
of each of the 257 documents, the court concluded that 32 of the
documents were subject to disclosure in redacted form and
enclosed them with the order. The court dismissed the petition
with regard to the remaining documents and also denied
petitioner's request for counsel fees.1 Petitioner appeals.


    1
        A court's determination that does not address specific
relief requested by a party is equivalent to a denial of that
relief (see Klansky v Weiden Lake Prop. Owners Assn., Inc., 127
AD3d 1439, 1440-1441 [2015]; Hess v Wojcik-Hess, 86 AD3d 847, 848
n 1 [2011], lv denied 18 NY3d 805 [2012]). Accordingly, by not
                              -3-                521999

      Initially, we reject petitioner's contention that he is
entitled to disclosure of all of the documents due to an alleged
failure by Supreme Court to provide sufficient factual
explanation for its determination as to each document. As is
well established, petitioner's entitlement to the documents
depends upon whether respondent does or does not meet its burden
of establishing that the documents fall within an exemption to
FOIL disclosure (see Matter of Gould v New York City Police
Dept., 89 NY2d 267, 275 [1996]; Matter of Columbia-Greene Beauty
Sch., Inc. v City of Albany, 121 AD3d 1369, 1370 [2014]; Matter
of Miller v New York State Dept. of Transp., 58 AD3d 981, 983
[2009], lv denied 12 NY3d 712 [2009]), and petitioner's
entitlement to documents is not dependent on the specificity of a
trial court's written findings.

      Further, we find that Supreme Court properly limited its
scope of review in accordance with this Court's unambiguous
directive that the scope of remittal was limited to addressing
whether or not documents responsive to petitioner's request
number 13 or 21 were exempt from disclosure (111 AD3d at 1126-
1127). Accordingly, the court acted properly in declining to
consider the propriety of disclosing documents that were not
responsive to petitioner's request number 13 or 21. Having
reviewed documents 22, 26-28, 32, 35, 41, 44-47, 52-54, 58, 65,
66, 92, 96, 100, 101, 104, 107, 108, 112-114, 137, 141, 154, 172,
174, 202, 212-240, 242-248 and 252-257, we agree with the court
that they are not responsive to petitioner's request number 13 or
21.

      Next, pursuant to Public Officers Law § 87 (2) (g), inter-
or intra-agency materials are exempted from FOIL disclosure to
the extent that they do not contain "(i) statistical or factual
tabulations or data; (ii) instructions to staff that affect the
public; [or] (iii) final agency policy or determinations." The
exemption for inter- or intra-agency materials "applies to
'opinions, ideas, or advice exchanged as part of the consultative
or deliberative process of government decision making'" (Matter


expressly addressing petitioner's request for counsel fees,
Supreme Court denied that request.
                              -4-                521999

of Smith v New York State Off. of the Attorney Gen., 116 AD3d
1209, 1210 [2014], lv denied 24 NY3d 912 [2014], quoting Matter
of Gould v New York City Police Dept., 89 NY2d at 277). We agree
with Supreme Court that respondent met its burden of establishing
that documents 1, 2, 8-10, 13-15, 17, 18, 21, 23, 24, 29, 31, 34,
36-40, 43, 48, 51, 55-57, 63, 64, 67, 68, 72, 73, 78, 80-82, 87-
90, 95, 97-99, 105, 106, 110, 111, 116, 118, 120, 127, 131-133,
135, 136, 138-140, 142, 147, 153, 155-157, 160-166, 171, 173,
175, 176, 180, 182, 184, 187-190, 193-195, 197-201, 205, 207-210,
241 and 251 are exempted inter- or intra-agency materials.

      However, Supreme Court should have directed the disclosure
of documents 19, 20 and 249. A court is limited to considering
only those exemptions to disclosure that are invoked by the party
from whom disclosure is sought (see Matter of Trump-Equitable
Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593 [1982]; Matter of
Karimzada v O'Mara, 111 AD3d 1088, 1089 [2013]). Accordingly,
the court should not have relied on a justification for
withholding documents 19 and 20 that was not raised by
respondent. Further, as to the remaining justification for
withholding those two documents, the safety exemption (see Public
Officers Law § 87 [2] [f]) does not justify withholding documents
19 and 20 entirely rather than disclosing them subject to
appropriate redactions;2 both documents are directed at an entity
— a hospital — and they generally pertain to the production of
business records. Likewise, document 249, which the court
withheld solely on the basis of the safety exemption, is not
entirely exempt from disclosure on that basis. Document 249 is a
letter from respondent in response to an individual's inquiry
regarding whether he or she would receive $1,000 from respondent
in exchange for his or her testimony. Respondent informed the
individual that it does not have a policy of providing such
rewards. Neither respondent's policy in that regard nor its
response to the inquiry regarding a reward contains identifying
information related to a witness. Accordingly, we remit for the


    2
        Petitioner does not contest Supreme Court's conclusion
that all documents subject to disclosure are nonetheless subject
to redaction consistent with the safety exemption in regard to
witnesses involved in petitioner's prosecution.
                                -5-                521999

limited purpose of redacting documents 19, 20 and 249 to remove
identifying details regarding witnesses before releasing those
documents to petitioner (see generally Matter of Data Tree, LLC v
Romaine, 9 NY3d 454, 464 [2007]; Matter of Scott, Sardano &
Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d
294, 298-299 [1985]; Matter of Applegate v Fischer, 89 AD3d 1303,
1304 [2011]; Matter of Miller v New York State Dept. of Transp.,
58 AD3d at 985; Matter of Laporte v Morgenthau, 11 AD3d 410, 410
[2004]).3

      Finally, Supreme Court did not abuse its discretion in
declining to award petitioner counsel fees, even in light of the
additional relief that it afforded petitioner (see Matter of
Miller v New York State Dept. of Transp., 58 AD3d at 985; Matter
of Henry Schein, Inc., v Eristoff, 35 AD3d 1124, 1126 [2006]).
Further, although this Court is modifying Supreme Court's
determinations as to three additional documents found to be
subject to disclosure, upon consideration of the extent of that
additional relief in relationship to the scope of petitioner's
CPLR article 78 proceeding as a whole, we find remittal for that
court's reassessment of its denial of petitioner's request for
counsel fees is unwarranted. Accordingly, exercising our own
discretionary power (see generally Small v Lorillard Tobacco Co.,
94 NY2d 43, 53 [1999]), we find that petitioner has not
substantially prevailed and is therefore not entitled to counsel
fees (see generally Matter of Henry Schein, Inc., v Eristoff, 35
AD3d at 1125-1126). Petitioner's remaining arguments are either
academic or without merit.

        Lahtinen, J.P., Garry, Clark and Mulvey, JJ., concur.




    3
        As to the remaining undisclosed documents, petitioner
leaves unchallenged at least one independent basis that Supreme
Court relied upon for withholding each document. Accordingly,
any of petitioner's arguments that pertain to these documents are
academic.
                              -6-                  521999

      ORDERED that the order and judgment is modified, on the
law, without costs, by reversing so much thereof as found
documents 19, 20 and 249 entirely exempt from disclosure; matter
remitted to the Supreme Court for further proceedings not
inconsistent with this Court's decision; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
