He'ron v. Office of District Attorney , 946 N.Y.S.2d 466 ( 2012 )

Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered on or about May 19, 2011, which, to the extent appealed from as limited by the briefs, dismissed the petition brought pursuant to CPLR article 78, seeking, inter alia, to compel respondent to provide the records of criminal convictions and/or pending charges against one George Santos, a purported witness at petitioner’s 1980 murder trial, which petitioner sought through a Freedom of Information Law (FOIL) request, unanimously affirmed, without costs.

Respondent satisfied the requirements of Public Officers Law § 89 (3) by certifying that a diligent search had been conducted and the documents could not be located in respondent’s files (see Matter of Rattley v New York City Police Dept., 96 NY2d 873 [2001]; Matter of Alicea v New York City Police Dept., 287 AD2d 286 [2001]). An agency is not required to create records in order to comply with a FOIL request (Public Officers Law § 89 [3]; see Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 464 [2007]). Concur — Tom, J.P., Andrias, DeGrasse, Richter and Roman JJ.