In re Radio City Music Hall Productions, Inc.

Order, Supreme Court, New York County (Saxe, J.), entered on or about December 12, 1984, which granted petitioners only partial discovery of investigation reports maintained by the New York City Police Department, affirmed, without costs. The salient facts are set forth in the dissent. After reviewing the police records in camera, Special Term made them available to petitioners, redacting only the names and statements of confidential police witnesses and the name of a suspect identified by the infant victim from police photographs. We have also had the opportunity to review the police records. [231] The Freedom of Information Law (Public Officers Law § 87 [2] [e] [i], [in]) exempts from disclosure materials compiled for law enforcement purposes which, if disclosed, would interfere with law enforcement investigations, identify a confidential source, or disclose confidential information relating to a criminal investigation. It is apparent from an examination of the police records that the matters redacted by Special Term fall squarely within these stated exemptions. A remand should not, in any event, produce a different result. The issue is not academic. The crime is a felony (Penal Law § 130.50) which allegedly occurred on May 4, 1983. Thus, the Statute of Limitations has not yet run (CPL 30.10 [2] [b]). A suspect has been identified. Prosecution is altogether possible. The procedure followed by Special Term, in camera inspection, is precisely that which the Court of Appeals approved for proceedings under the Freedom of Information Law in Matter of Farbman & Sons v New York City Health & Hosps. Corp. (62 NY2d 75, 83 [1984]), wherein it stated: "The proper procedure for reaching a determination is the in camera inspection ordered by Special Term. (See Church of Scientology v State of New York, 46 NY2d 906, 908.)” The court, as noted, correctly applied the standards of the Freedom of Information Law and followed the procedure appropriate under it. In the circumstances, we cannot assume that the experienced Judge had failed to consider that law, simply because the parties had not fully delineated it in their papers. It further appears that petitioners’ CPLR article 78 proceeding would have been premature, even had it been brought under the Freedom of Information Law, since they failed to exhaust their administrative remedies prior to instituting it (CPLR 7801 [1]). The Freedom of Information Law requires an administrative appeal of a denial of access to records prior to the institution of an article 78 proceeding. (Public Officers Law § 89 [5] [c] [1], [2]; [d].) Concur — Sullivan, J. P., Ross, Asch and Rosenberger, JJ.