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AN ARTICLE 78 REVIEW OF THE RESPONSE TO A FOIL REQUEST MAY ONLY CONSIDER THE GROUND FOR THE INITIAL AGENCY DECISION; THE GROUNDS FOR A SUBSEQUENT DECISION ISSUED AFTER THE ARTICLE 78 PROCEEDING WAS COMMENCED SHOULD NOT HAVE BEEN CONSIDERED; PETITIONER’S REQUEST FOR THE METADATA OF THE DISCLOSED DOCUMENTS MUST BE DENIED BECAUSE METADATA WAS NOT ‘REASONABLY DESCRIBED’ IN THE FOIL REQUEST (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Article 78 review must be confined to the ground asserted in the agency’s initial FOIL decision and could not consider the grounds asserted in the agency’s subsequent decision issued after petitioner brought the Article 78 proceeding. The ground for the initial decision had been abandoned in the second decision. The court noted that the petitioner’s demand for the metadata of the disclosed documents must be denied because metadata was not “reasonably described” in the FOIL request:

This proceeding is not in the nature of mandamus to compel. Instead, the standard of review is whether the denial of the FOIL request was “affected by an error of law” (CPLR 7803[3] … ), for which judicial review is “limited to the grounds invoked by the agency” in its determination … . Since respondents abandoned the exemption raised in their initial decision, they cannot meet their burden to “establish[] that the . . . documents qualif[y] for the exemption” … . Further, as respondents “did not make any contemporaneous claim that the requested materials” fit the newly raised exemptions, “to allow [them] to do so now would be contrary to [Court of Appeals] precedent, as well as to the spirit and purpose of FOIL” … . …

An agency is only required to produce “a record reasonably described” (Public Officers Law § 89[3][a]). Contrary to petitioner’s contention, the FOIL request for “complete copies” of communications and documents cannot fairly be read to have implicitly requested metadata associated with those copies. Matter of Barry v O’Neill, 2020 NY Slip Op 04007, First Dept 7-16-20

 

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