MATTER OF THOMAS v. RECORDS ACCESS OFFICER

Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.

As we stated in Matter of Key v. Hynes ( 205 A.D.2d 779 [decided herewith]), it is error to accept wholly conclusory allegations as a substitute for proof that an agency governed by the Freedom of Information Law (Public Officers Law § 84 et seq.) has been unable to locate a document after having conducted a "diligent search" (Public Officers Law § 89). In this case, however, the employee who conducted the actual search for the documents in question submitted an affidavit which provided an adequate basis upon which to conclude that a "diligent search" for the documents in question had been made (see, Matter of Key v. Hynes, supra). The Supreme Court went further and ordered a hearing at which both this employee and a supervising Assistant District Attorney appeared. We reject the petitioner's contentions that he had the right to be present at this hearing (see generally, Pope v Pope, 198 A.D.2d 406) and that he had the right to the assignment of counsel. The evidence produced at this hearing was more than adequate to show that a diligent search for the documents requested had been made. Bracken, J.P., Miller, Copertino and Hart, JJ., concur.