FOIL Request Should Not Have Been Denied—Questions of Fact About Ability to Retrieve Documents

The Second Department determined there were questions of fact whether the Long Island Power Authority (LIPA) was required to retrieve documents pursuant to petitioner’s Freedom of Information Law (FOIL) request.  The court explained the applicable criteria:

The Legislature has declared that “government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article” (Public Officers Law § 84…). The term “record” is defined to mean “any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form whatsoever including . . . papers [and] computer tapes or discs” (Public Officers Law § 86[4]). With limited exceptions, FOIL does not “require any entity to prepare any record not possessed or maintained by such entity” (Public Officers Law § 89[3][a]…). However, “[a]ny programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record” (Public Officers Law § 89[3][a]). An agency may not deny a request because it was too voluminous or burdensome if the request could be satisfied by engaging an outside service (see Public Officers Law § 89[3][a]). Moreover, an agency may recover the costs of engaging an outside service from the person or entity making such a request (see Public Officers Law § 89[3][a]).

“[T]he burden of proof rests solely with the [agency] to justify the denial of access to the requested records” … . This burden must be met “in more than just a plausible fashion” … .

Here, the Supreme Court erred in denying the amended petition and dismissing the proceeding, as there are triable issues of fact as to whether the petitioner requested data or records that could be retrieved or extracted with reasonable effort, whether the requests required the creation of new records, and whether the cost of the retrieval could be passed on to the petitioner (see CPLR 7804[h]…).  Matter of County of Suffolk v Long Is Power Authority, 2014 NY Slip Op 05540, 2nd Dept 7-30-14