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A COURT REVIEWING THE DENIAL OF A FOIL REQUEST CANNOT BASE ITS RULING AFFIRMING THE DENIAL ON A GROUND NOT RAISED BY THE AGENCY TO WHICH THE REQUEST WAS MADE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that a court reviewing the denial of a FOIL request cannot base its ruling on a ground that was not cited by the agency to which the request was made:

“In a proceeding pursuant to CPLR article 78 to compel the production of material pursuant to FOIL, the agency denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are narrowly construed” …  This showing requires the agency “to articulate a particularized and specific justification for denying access,” and “[c]onclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed” … . “If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material” … .

“It is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency” … . A reviewing court “‘is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis'” … . Matter of McFadden v McDonald, 2022 NY Slip Op 02265, Second Dept 4-6-22

Practice Point: A court affirming the denial of a FOIL request cannot do so on a ground not raised by the agency to which the request was made.

 

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