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Respondents Must Demonstrate Why Request Not Specific Enough For Extraction from Electronic Documents/Claim that Documents Are Exempt from Disclosure Is Not Enough to Defeat the Request—Remedy Is In Camera Review

The Third Department determined the respondents should demonstrate why the descriptions of the documents sought by a FOIL request were insufficient for extraction from electronic documents.  With respect to respondents claim the information was exempt from disclosure, that assertion is not enough to defeat a FOIL request and the appropriate relief is an in camera review of the material alleged to be exempt:

We agree with respondents that a valid basis for denying the FOIL request has been established – at least with respect to the actual files – when they are not “indexed in a manner that would enable the identification and location of documents” … . Respondents have also indicated, however, that at least some of the files are maintained electronically. Despite this, they have offered no evidence to establish that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document from the virtual files through an electronic word search of the former Assistant County Attorney’s name or other reasonable technological effort (see Public Officers § 89 [3] [a]…).  We also note that “the broad allegation here that the files contain exempt material is insufficient to overcome the presumption that the records are open for inspection” … . In the event that the requested record can be located electronically and respondents are able to establish that the document contains exempt material, the appropriate remedy is an in camera review and “disclosure of all nonexempt, appropriately redacted material”… . Matter of Pflaum v Grattan, 516119, 3rd Dept 4-3-14

 

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