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IN RESPONSE TO PETITIONER’S FOIL REQUESTS, THE TOWN DID NOT CITE ANY EXEMPTION FOR THE IDENTIFIED RECORDS WHICH WERE NOT PRODUCED AND DID NOT CERTIFY THOSE RECORDS DID NOT EXIST; IN ADDITION THE TOWN DID NOT EXPLAIN THE REASONS FOR THE REDACTIONS IN THE PRODUCED RECORDS; ALL IN VIOLATION OF THE PUBLIC OFFICERS LAW; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court and remitting the matter, determined that the respondent town did not explain its failure to produce the determinations made in 51 of the 54 appeals identified in response to the petitioner’s FOIL request and did not explain the reasons for redactions made in the records which were provided:

… Supreme Court erred in dismissing so much of the petition/complaint as sought, in effect, to compel the production of all responsive records or, in the alternative, to certify that the respondent does not possess the requested records and that they could not be located after a diligent search. The respondent does not dispute that it failed to produce the determinations made in 51 of the 54 appeals that were identified in response to the petitioner’s request. The respondent did not claim a specific exemption to disclosure in denying the petitioner’s request for those determinations. Accordingly, the respondent was required to either produce those records or certify that it does not possess the requested records and that they could not be located after a diligent search (see Public Officers Law § 89[3][a] …).

Supreme Court also erred by determining that the respondent’s redactions were permissible to prevent unwarranted invasions of personal privacy pursuant to Public Officers Law § 87(2)(b). In an administrative appeal of an agency’s denial of access to records, the agency is required to “fully explain in writing . . . the reasons for further denial” (Public Officers Law § 89[4][a]). “[J]udicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis” … . Here, the respondent failed to respond to the petitioner’s administrative appeal, and failed to otherwise reference Public Officers Law § 87(2)(b) as a justification for the redactions. To provide the respondent the benefit of justifications it did not advance in the first instance “contravenes Court of Appeals precedent ‘as well as the spirit and purpose of FOIL'” … . Matter of Aron Law, PLLC v Town of Hempstead, 2025 NY Slip Op 05519, Second Dept 10-8-25

Practice Point: Under FOIL (Public Officers Law) identified records must be produced unless an exemption is demonstrated to apply or the respondent certifies that the records could not be found after a diligent search. In addition, the reasons for any redactions in produced records must be explained. Here Supreme Court should not have dismissed aspects of the FOIL petition in the absence of these required responses by the town.

 

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