Judgment of the Supreme Court, New York County (Leland DeGrasse, J.), entered on October 25, 1990, which granted respondents’ cross-motion to dismiss this petition pursuant to CPLR article 78, is unanimously reversed on the law, the cross-motion to dismiss the petition denied and the petition granted to the extent of authorizing petitioner to appeal the partial grant of material with respect to Indictment No. 2054/ 84 and directing respondents to review the requested records relating to Indictment No. 2441/84 and either release them to petitioner within five days after the date of this order or specify within fifteen days and with particularity the reasons for their refusal to do so, without costs and disbursements.
Petitioner, an inmate at the Elmira Correctional Facility and acting pro se, instituted this proceeding pursuant to CPLR article 78 after respondents failed to respond to his two separate requests for material under New York Public Officers Law § 89 (3), New York’s Freedom of Information Law (FOIL). According to section 89 (3): “Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment
In that regard, petitioner, by letter dated June 25, 1989, had sought "a copy of the file compiled during the investigation which led to the criminal action entitled People of the State of New York—versus—Newton, Bronx County Indictment No. 2441/84 and all documents contained therein.” At around the same time in another letter, he asked for information concerning Indictment No. 2054/84. However, the Records Access Officer did not respond until October of 1989 when he advised petitioner that his FOIL request was under review. On March 15, 1990, petitioner wrote to inquire of the progress being made with his demands, but respondents took no action until after he had commenced the instant proceeding when, by letter dated July 27, 1990, they sent him a number of documents with respect to Indictment No. 2054/84. In addition, certain other material was deemed unacceptable. Thus, respondents stated that:
"Complaint follow-up reports are not accessible for the following reasons:
"(a) The records are compiled for law enforcement purposes and which if disclosed, would identify a confidential source or disclosed [sic] confidential information relating to a criminal investigation. Sec. 87 (2) (e) (iii) Public Officers Law.
"(b) Disclosure would endanger the life or safety of any person. Sec. 87 (2) (f) Public Officers Law.
"(c) Disclosure would reveal criminal investigation techniques or procedures, except routine techniques or procedures. Sec. 87 (2) (e) (iv) Public Officers Law (Supra). ”
Thereafter, respondents cross-moved for dismissal on the ground of failure to assert a cause of action. They urged that petitioner’s claims were moot since his request had already been met and, moreover, he had not exhausted his administrative remedies since he had not appealed to the Police Department the partial denial of his FOIL demand. Petitioner replied by noting that respondents had never responded to his
“An action by respondent during pendency of litigation of an Article 78 Action, renders petitioner’s claims moot. (Pordum v. Nyquist, 42 NY2d 958). The branch of the petition seeking declaratory relief because of respondent’s earlier failure to provide petitioner an approximate date upon which his FOIL request would be acted upon, has been obviously obviated by respondent’s recent agreement to comply with petitioner’s request and is thus moot.
"The second branch of petitioner’s Article 78 petition to this court that the Police Department furnish his entire arrest file to him, is denied. This court does not have subject matter jurisdiction. A person denied access to certain information requested under FOIL must appeal the denial in writing to the agency’s appropriate person or entity within 30 days, (Public Officers Law § 89 (4) (a)). Petitioner has not done so. Before a person seeking information under FOIL may resort to a judicial forum to gain relief, he must have exhausted his administrative remedies. (Matter of Kurland v. McLaughlin, 122 AD2d 947, 949). The Police Department has informed petitioner that 5 pages of documents from his arrest file are available to him. There is no record that petitioner has appealed this determination. Thus, petitioner’s demand for relief pursuant to his FOIL request is not properly before this court.”
Petitioner then complained to the court that while he had received some documents relating to Indictment No. 2054/84, his FOIL application with respect to Indictment No. 2441/84 had been ignored. Therefore, he contended, his petition should be held in abeyance until respondents provide him with the materials for Indictment No. 2441/84. Respondents have explained that they inadvertently learned of this request only when they examined the file in connection with the instant appeal, and “the fact that no final determination was made with respect to [petitioner’s] second FOIL request has been communicated to the Police Department, which is currently preparing a response.” However, petitioner states that respondents’ misunderstanding is simply the product of the failure to respond diligently to his applications and that, further, since respondents have not demonstrated that the information sought was exempt under the statute, he is entitled to the entirety of his FOIL requests.