In Rattley v. New York City Police Department, 96 NY2d 873, 756 N.E.2d 56, 730 N.Y.S.2d 768 (2001), the petitioner, who had been convicted of second degree murder, requested police department documents relevant to his case, and the NYPD responded by a letter stating that although certain documents would be produced, other documents could not be located.
Subsequently, in opposition to petitioner's request for Article 78 relief, the NYPD submitted an affirmation of its counsel stating that despite a "'thorough and diligent search' certain documents could not be found." Id., at 874.
Although the Appellate Division, First Department held that a counsel's affirmation and letter stating that the documents requested could not be located did not provide a sufficient basis for the court to determine without a hearing whether the respondent conducted a diligent search (Rattley v. New York City Police Department, 270 AD2d 170, 171, 706 N.Y.S.2d 26 (1st Dept 2000)), the Court of Appeals disagreed. In its decision reversing the First Department and dismissing the petition, the Court of Appeals wrote that:
When an agency is unable to locate documents properly requested under FOIL, Public Officers Law § 89(3) requires the agency to "certify that is does not have possession of a requested record or that such record cannot be found after diligent search." The statute does not specify the manner in which an agency must certify that the documents cannot be located. Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required. (Rattley v. New York City Police Department, 96 NY2d, at 875.)