Di Rose v. New York State Department of Correctional Services

Appellate Division of the Supreme Court of New York

Di Rose v. New York State Department of Correctional Services

216 A.D.2d 691, 627 N.Y.S.2d 850, 1995 N.Y. App. Div. LEXIS 6386

Appellate Division of the Supreme Court of the State of New York·Decided June 15, 1995·Published·Cited by 2 cases

Opinion

White, J.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered March 23,1994 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondent to release certain documents pursuant to the Freedom of Information Law.

Following his unsuccessful administrative appeal from the denial of his Freedom of Information Law (Public Officers Law art 6) request for "the State Wide Alphabetical listing of all inmates currently in DOCS custody, showing facility of [692]*692incarceration and DIN Numbers”, petitioner commenced this CPLR article 78 proceeding seeking a judgment directing respondent to produce the requested record. Supreme Court dismissed the petition on the ground that the requested record does not exist and Public Officers Law § 89 (3) does not require an agency to create a record. This appeal ensued.

We affirm. Although respondent may maintain an "Alpha Cell Book” for each correctional facility listing every inmate incarcerated therein, it is under no obligation to compile the requested data from such records (see, Matter of Reubens v Murray, 194 AD2d 492; Matter of Guerrier v Hernandez-Cuebas, 165 AD2d 218, lv denied 78 NY2d 853). We further note that petitioner’s contention that the requested record exists is mere speculation bereft of any evidentiary support (see, Matter of Wood v Ellison, 196 AD2d 933).

Cardona, P. J., Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.

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White, J.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered March 23,1994 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondent to release certain documents pursuant to the Freedom of Information Law.

Following his unsuccessful administrative appeal from the denial of his Freedom of Information Law (Public Officers Law art 6) request for "the State Wide Alphabetical listing of all inmates currently in DOCS custody, showing facility of [692]*692incarceration and DIN Numbers”, petitioner commenced this CPLR article 78 proceeding seeking a judgment directing respondent to produce the requested record. Supreme Court dismissed the petition on the ground that the requested record does not exist and Public Officers Law § 89 (3) does not require an agency to create a record. This appeal ensued.

We affirm. Although respondent may maintain an "Alpha Cell Book” for each correctional facility listing every inmate incarcerated therein, it is under no obligation to compile the requested data from such records (see, Matter of Reubens v Murray, 194 AD2d 492; Matter of Guerrier v Hernandez-Cuebas, 165 AD2d 218, lv denied 78 NY2d 853). We further note that petitioner’s contention that the requested record exists is mere speculation bereft of any evidentiary support (see, Matter of Wood v Ellison, 196 AD2d 933).

Cardona, P. J., Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.

Di Rose v. New York State Department of Correctional Services, 216 A.D.2d 691, 627 N.Y.S.2d 850, 1995 N.Y. App. Div. LEXIS 6386 (N.Y. Ct. App. 1995).

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216 A.D.2d 691 (Di Rose v. New York State Department of Correctional Services) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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