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THE TOWN DID NOT ADEQUATELY EXPLAIN ITS FAILURE TO TURN OVER CERTAIN DOCUMENTS WHICH WERE CREDIBLY ALLEGED TO EXIST IN THE FOIL REQUEST; THE FOIL PETITION WAS REINSTATED AND THE MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter, determined the Town did not adequately explain its refusal to turn over documents relating to an Amazon warehouse and distribution center that was to be built in the Town. Therefore the petition, which was dismissed by Supreme Court, was reinstated:

Here, Meyer [the appellant] credibly alleged the existence of records, such as email correspondence between Amazon and the Town and traffic studies which may have been undertaken in connection with the approval of the new warehouse and distribution center, which were not produced. When faced with a request for such records, the Town was required to “either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search” … . Merely representing that “[u]pon information and belief” all documents had been provided, as was averred by the Town’s FOIL appeals officer in connection with the Town’s motion, is insufficient to comply with the requirements of FOIL … . Matter of Meyer v Town of Hempstead, 2025 NY Slip Op 01930, Second Dept 4-2-25

Practice Point: Here the FOIL request credibly alleged that certain documents existed. The Town’s response that “upon information and belief” all documents had been provided was not sufficient. The statute requires the Town to claim a specific exemption or certify it does not possess or could not locate the requested documents. The dismissed petition was reinstated.

 

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