From: Jobin-Davis, Camille (DOS)
Sent: Friday, December 19, 2008 3:04 PM
Subject: Freedom of Information Law - record previously disclosed
In Moore v. Santucci, 543 NYS2d 103, 151 AD2d 677 (1989) it was held that if a record sought was previously made available to the defendant or his or her attorney, there must be a demonstration that neither possesses the record in order to successfully obtain a second copy. Specifically, the decision states that:
"...if the petitioner or his attorney previously received a copy of the agency record pursuant to an
alternative discovery device and currently possesses the copy, a court may uphold an agency's denial of the petitioner's request under the FOIL for a duplicate copy as academic. However, the burden of proof rests with the agency to demonstrate that the petitioner's specific requests are moot. The respondent's burden would be satisfied upon proof that a copy of the requested record was previously furnished to the petitioner or his counsel in the absence of any allegation, in evidentiary form, that the copy was no longer in existence. In the event the petitioner's request for a copy of a specific record is not moot, the agency must furnish another copy upon payment of the appropriate fee...unless the requested record falls squarely within the ambit of 1 of the 8 statutory exemptions" (id., 678).
I hope that this is helpful to you. Happy Holidays!
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State