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THE PETITION SEEKING EMAILS AND RECIPIENT LISTS IN ELECTRONIC FORM FROM THE VILLAGE SHOULD NOT HAVE BEEN DISMISSED; THE VILLAGE DID NOT DEMONSTRATE THE REQUEST COULD NOT BE GRANTED WITH REASONABLE EFFORTS; PETITIONER WAS NOT ADVISED OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL, THEREFORE THE APPEAL WAS NOT UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking emails and the related recipient lists in electronic form should not have been dismissed because the denial of the request did not indicate no one employed by the village had the expertise to provide the information in electronic form. In addition, the appeal of the denial of another similar request should not have been deemed untimely because the petitioner was never advised of the availability of an administrative appeal:

Guazzoni {the Village Trustee] stated that he lacked the technical sophistication to manually transfer the email addresses of each of his individual recipients onto an Excel spreadsheet in order to provide an electronically formatted response to the FOIL request. However, Guazzoni did not address whether any other employee of the Village could, with a reasonable degree of time and effort, create an Excel spreadsheet that would comply with the terms of the FOIL request. It cannot be said, therefore, that the amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by Village employees could be undertaken to provide an electronically formatted response … . …

Public Officers Law § 89(3)(a) and (4)(a) requires that FOIL requests be granted or denied by an agency within five business days, and that any administrative appeal of a denial, as required for exhausting administrative remedies, be undertaken within 30 days of the denial. 21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days. However, since there was no advisement to the petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Supreme Court erred in concluding that the petitioner’s administrative appeal, which was filed on July 13, 2017, was time barred … . Matter of Madden v Village of Tuxedo Park, 2021 NY Slip Op 01415, Second Dept 3-10-21

 

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