Freedom of Information Law (FOIL)

BECAUSE THE FOIL REQUESTS REQUIRED THE RESPONDENT TO CREATE NEW DOCUMENTS, THE REQUESTS SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined FOIL requests for information about kosher meals provided by the NYC Department of Corrections (DOC) should have been denied because the requests would have required the creation of new documents:

… “[A]s a general rule, an agency responding to a FOIL request is not required to create any new record or data that is not already possessed and maintained by it as such” … .

The Press requested the following information: (1) how many inmates requested kosher meals in each of the last 10 years?; (2) how many of those requests were granted and how many were denied?; and (3) the reason for any denials. Here, the DOC established that it “does not track, record or report the amount of Kosher/Halal meals that are requested.” The DOC further established that the number of requests granted or denied and the reasons for the denials are not maintained by the DOC and would call for the creation of new records, which exceeds the scope of the DOC’s obligations in response to a FOIL request … . Matter of Jewish Press, Inc. v New York City Dept. of Corr., 2021 NY Slip Op 07544, Second Dept 12-29-21

December 29, 2021/0 Comments/by Bruce Freeman

PETITIONER’S FOIL REQUEST FOR A POLICE MANUAL WAS AT FIRST DENIED, BUT WAS GRANTED AFTER THE ARTICLE 78 PROCEEDING WAS BROUGHT; RESPONDENT DID NOT HAVE A GOOD REASON FOR FIRST DENYING THE REQUEST; PETITIONER “SUBSTANTIALLY PREVAILED” AND WAS ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined petitioner in this FOIL proceeding “substantially prevailed” and was therefore entitled to attorney’s fees:

Upon petitioner’s FOIL request seeking the contents of a medical screening manual used by the New York City Police Department, respondents, relying on Public Officers Law § 87(2)(d) among other sections of the statute, produced only the manual’s cover, title page, and table of contents, maintaining that they lacked the necessary permission from the manual’s developer to release the rest of the manual. After petitioner commenced this article 78 proceeding, however, respondents produced the rest of the manual in unredacted form, except for the appendices, with their response to the petition. Under these circumstances, petitioner substantially prevailed within the meaning of Public Officers Law § 89(4)(c) … .

… [R]espondents have not established that they had a “reasonable basis” for withholding production under Public Officers Law § 87(2)(d). Respondents concede that they sought permission from the manual’s developer to release the information only after receiving the article 78 petition, suggesting that the disclosure was prompted solely by petitioner’s resort to litigation and that respondents could have sought permission in response to the FOIL request itself. This fact militates against a finding that the agency had a “reasonable basis” for withholding production … . Matter of Jaskaran v City of New York, 2021 NY Slip Op 06762, First Dept 12-2-21

December 2, 2021/by Bruce Freeman

Attorneys, Freedom of Information Law (FOIL)

PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AS THE PREVAILING PARTY IN THIS FOIL PROCEEDING; RESPONDENT HAD AGREED TO ALLOW PETITIONER TO VIEW THE ELECTRONIC FILES USING ITS VIEWING PROGRAM, BUT HAD DENIED, FOR NO GOOD REASON, PETITIONER’S REQUEST TO TRANSFER THE FILES TO A FLASH DRIVE (THIRD DEPT).

The Third Department determined petitioner was entitled to attorney’s fees because petitioner substantially prevailed on certain requests for documents after commencing an Article 78 proceeding. With respect to one of the requests, although respondent had agreed to allow petitioner to view the requested electronic files using respondent’s viewing program, respondent, without good reason, denied petitioner’s request to place the files on a flash drive:

We agree with petitioner that Supreme Court erred in denying its request for counsel fees. As relevant here, a court in a FOIL proceeding “shall assess, against such agency involved, reasonable [counsel] fees and other litigation costs . . . in any case . . . in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access” to the records sought … . “‘A petitioner substantially prevails under Public Officers Law § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation'” … .

Petitioner substantially prevailed in the litigation. Through use of the judicial process, petitioner received documents responsive to demand Nos. 2-5 in the medium it desired and obtained a certification under demand Nos. 6-8 pertaining to multifamily homes … . Contrary to Supreme Court’s finding, the fact that the disclosure under demand Nos. 2-5 stemmed from a mutual accord between the parties does not change the analysis, as “the voluntariness of an agency’s disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed” … . Moreover, respondent did not have a reasonable basis for the precommencement denial of the records responsive to demand Nos. 2-5, as evidenced by its subsequent production of said documents in electronic form. Matter of Aron Law PLLC v Town of Fallsburg, 2021 NY Slip Op 06593, Third Dept 11-24-21

November 24, 2021/by Bruce Freeman

Administrative Law, Freedom of Information Law (FOIL)

THE DENIAL OF THE FOIL REQUEST DID NOT ADVISE PETITIONER OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL; THEREFORE SUPREME COURT SHOULD NOT HAVE DISMISSED THE ARTICLE 78 PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking the production of documents should not have been dismissed on the ground petitioner failed to exhaust administrative remedies. When the FOIL request was denied the denial did not advise petitioner of the availability of an administrative appeal:

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(b) further requires, however, that “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer.” Since there is no dispute that the subject denial of the petitioner’s FOIL request failed to advise the petitioner of the availability of an administrative appeal and the person to whom the appeal should be directed as required by 21 NYCRR 1401.7(b), the Supreme Court erred in dismissing the petition for failure to exhaust administrative remedies … . Matter of Snyder v Nassau County, 2021 NY Slip Op 06359, Second Dept 11-17-21

November 17, 2021/by Bruce Freeman

Attorneys, Freedom of Information Law (FOIL)

THE EXECUTIVE ORDER TOLLING STATUTES OF LIMITATIONS BECAUSE OF THE COVID PANDEMIC DOES NOT APPLY TO THE TIME LIMITS FOR RESPONSES TO FOIL REQUESTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the district attorney could not use the statutes-of-limitations tolls imposed by executive order because of the COVID pandemic to delay responses to FOIL requests:

By its terms, EO [Executive Order] 202.8 tolls legal “process[es] or proceeding[s] as prescribed by the procedural laws of the state” … . The FOIL framework and deadlines for agency responses to requests are not “prescribed by the procedural laws,” such as the CPLR and CPL. In the context of FOIL requests, legal “proceedings” ensue only when parties are unable to agree on a response to a request, and resort to the courts via CPLR article 78 proceedings. The conduct of article 78 proceedings are “prescribed by the procedural laws” of the CPLR. FOIL requests and responses are not so prescribed … .

Hence, respondents’ position that EO 202.8 tolls their obligation to respond to FOIL requests, is erroneous. Matter of Oustatcher v Clark, 2021 NY Slip Op 05295, First Dept 10-5-21

October 5, 2021/by Bruce Freeman

Freedom of Information Law (FOIL)

RESPONDENT DID NOT CONSTRUCTIVELY DENY PETITIONER’S FOIL REQUEST BY EXTENDING ITS SELF-IMPOSED DEADLINES FOR RESPONDING TO THE REQUEST (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined respondent NYS Department of Transportation did not constructively deny petitioner’s FOIL request by extending the time for a response. Therefore petitioner’s Article 78 proceeding was premature and was rendered moot by petitioner’s ultimate response to the request:

Generally, an agency must respond to a written request for records within a reasonable time and “there is no specific time period in which the agency must grant access to the records” … . The response protocol for an agency to follow is set forth in Public Officers Law § 89 (3) (a). An agency must respond within five business days and has various options — to either provide the records, deny the request or, as pertinent here, to “furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied” … . Respondent exercised that third option through the extension notices. Matter of Save Monroe Ave., Inc. v New York State Dept. of Transp., 2021 NY Slip Op 04639, Third Dept 8-4-21

August 5, 2021/by Bruce Freeman

Freedom of Information Law (FOIL)

DOCUMENTS CREATED AND HELD BY A PRIVATE ENTITY PURSUANT TO THE REGULATIONS OF A STATE AGENCY ARE NOT “RECORDS” WHICH THE STATE AGENCY MUST DISCLOSE PURSUANT TO THE FREEDOM OF INFORMATION LAW, DESPITE THE FACT THAT THE AGENCY CAN DEMAND PRODUCTION OF THE DOCUMENTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined documents created and held by a private entity (Union) pursuant to a state agency’s (New York Department of Labor’s) regulations regarding apprenticeship programs are not “records” which the Department of Labor is required to produce under the Freedom of information Law (FOIL):

… [R]espondent [New York Department of Labor] did not delegate a duty to the Union nor did the Union perform any essential service on respondent’s behalf. The mere fact that respondent has the discretionary regulatory authority to ask the Union for the requested documents does not, ipso facto, render all documents that are created and maintained by the Union with respect to its apprenticeship programs subject to disclosure (see Public Officers Law § 86 [4]). Practically speaking, to so hold would render any document that was created or maintained by a private entity in order to comply with a corresponding agency regulation requiring the production and retention thereof a “record” subject to disclosure under FOIL (see Public Officers Law § 86 [4]) … . …

Although we recognize that “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” … , we do not find the definition of “record” to be so broad and all-encompassing as to bring within its ambit any document that a private entity might create and maintain pursuant to a state agency’s regulation under the guise that said records are held “for” that agency (see Public Officers Law §§ 86 [4]; 87 [2]; 89 [3] [a] …). Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 2021 NY Slip Op 03509, Second Dept 6-3-21

June 3, 2021/by Bruce Freeman

Freedom of Information Law (FOIL)

RESPONDENT CITY DID NOT DEMONSTRATE THE FOIL REQUEST WOULD INTERFERE WITH LAW ENFORCEMENT OR JUDICIAL PROCEEDINGS OR WOULD REVEAL A CONFIDENTIAL SOURCE; MATTER REMITTED FOR IN CAMERA REVIEW TO DETERMINE WHETHER THE FOIL REQUEST WAS PROTECTED BY THE INTER- OR INTRA- AGENCY MATERIALS EXEMPTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that two of the grounds for denying the FOIL request were invalid and the third, the inter-agency or intra-agency materials exemption, could not be assessed absent an in camera review of the documents. The matter was remitted:

Respondent failed to meet its burden of establishing that disclosure of any records responsive to petitioner’s FOIL request would “interfere with law enforcement investigations or judicial proceedings” … . This exemption “ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course” … . …

Respondent also failed to establish that disclosure would “identify a confidential source or disclose confidential information relating to a criminal investigation” … , “in the absence of any evidence that [any] person received an express or implied promise of confidentiality'” … . Respondent’s assertion that disclosure would reveal nonroutine “criminal investigative techniques or procedures” … is conclusory.

The email messages submitted by petitioner in support of the article 78 petition are covered by the inter-agency or intra-agency materials exemption … because they amount to “opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making”… . However, the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review … . Matter of Jewish Press, Inc. v New York City Dept. of Investigation, 2021 NY Slip Op 02108, First Dept 4-6-21

April 6, 2021/by Bruce Freeman

Freedom of Information Law (FOIL)

A WARNING LETTER ISSUED TO THE NYC MAYOR BY THE NYC CONFLICTS OF INTEREST BOARD MUST BE RELEASED PURSUANT TO A FOIL REQUEST BY THE NEW YORK TIMES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that a warning letter issued to the NYC mayor by the Conflicts of Interest Board (Board) must be released pursuant to a Freedom of Information Law (FOIL) request:

At issue in this appeal is whether a “private” warning letter issued to the Mayor of the City of New York by the Conflicts of Interest Board (Board) is subject to disclosure pursuant to the Freedom of Information Law (FOIL). The City of New York office of the Mayor (Mayor’s Office) declined to disclose the letter to the New York Times (NYT) on the ground that the letter was exempt pursuant to New York City Charter § 2603(k), which states that “the records, reports, memoranda and files of the board shall be confidential and shall not be subject to public scrutiny.” The Mayor’s Office argues that since the letter was designated as “private” by the Board, and therefore confidential, it falls within the ambit of § 2603(k). We disagree. As the plain text of section 2603(k) indicates, it is meant to protect the confidentiality of documents in possession of the Board. Once the letter was issued to another entity, the Mayor could not rely on section 2603(k), because the NYT sought disclosure from the Mayor and not from the Board … . The Mayor’s Office’s privacy arguments are also inconsistent with the public interest in disclosure of warning letters, contrary to its own past practice of disclosing the Board’s correspondence, and otherwise have no merit. Accordingly, the letter must be disclosed. * * *

DOI [NYC Department of Investigations] found that the Mayor’s Office solicited contributions for CONY [Campaign for One New York] from executives of real estate development firms that likely had or potentially had business pending before the City. Although there was no finding of any quid pro quo, on several occasions, a firm achieved a favorable outcome from a City agency after it had made a donation to CONY … . These findings were transmitted to the Board, whose Chairman declined “for confidentiality reasons,” to tell a reporter whether the Board had issued a private warning letter, the only action available … . …

The NYT reporter to whom the Board chairman had spoken then filed a FOIL request with the Mayor’s Office for “a copy of a letter” sent by the Board to the Mayor’s Office regarding his fundraising for [CONY].” The request was denied on the ground that “the class of records you have requested would be exempt from disclosure pursuant to New York City Charter § 2603(k).” Matter of New York Times Co. v City of New York Off. of the Mayor, 2021 NY Slip Op 01948, First Dept 3-30-21

March 30, 2021/by Bruce Freeman

Freedom of Information Law (FOIL)

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

March 10, 2021/by Bruce Freeman

BECAUSE THE FOIL REQUESTS REQUIRED THE RESPONDENT TO CREATE NEW DOCUMENTS, THE REQUESTS SHOULD HAVE BEEN DENIED (SECOND DEPT).

PETITIONER’S FOIL REQUEST FOR A POLICE MANUAL WAS AT FIRST DENIED, BUT WAS GRANTED AFTER THE ARTICLE 78 PROCEEDING WAS BROUGHT; RESPONDENT DID NOT HAVE A GOOD REASON FOR FIRST DENYING THE REQUEST; PETITIONER “SUBSTANTIALLY PREVAILED” AND WAS ENTITLED TO ATTORNEY’S FEES (FIRST DEPT).

THE DENIAL OF THE FOIL REQUEST DID NOT ADVISE PETITIONER OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL; THEREFORE SUPREME COURT SHOULD NOT HAVE DISMISSED THE ARTICLE 78 PETITION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

THE EXECUTIVE ORDER TOLLING STATUTES OF LIMITATIONS BECAUSE OF THE COVID PANDEMIC DOES NOT APPLY TO THE TIME LIMITS FOR RESPONSES TO FOIL REQUESTS (FIRST DEPT).

RESPONDENT DID NOT CONSTRUCTIVELY DENY PETITIONER’S FOIL REQUEST BY EXTENDING ITS SELF-IMPOSED DEADLINES FOR RESPONDING TO THE REQUEST (THIRD DEPT).

DOCUMENTS CREATED AND HELD BY A PRIVATE ENTITY PURSUANT TO THE REGULATIONS OF A STATE AGENCY ARE NOT “RECORDS” WHICH THE STATE AGENCY MUST DISCLOSE PURSUANT TO THE FREEDOM OF INFORMATION LAW, DESPITE THE FACT THAT THE AGENCY CAN DEMAND PRODUCTION OF THE DOCUMENTS (THIRD DEPT).

A WARNING LETTER ISSUED TO THE NYC MAYOR BY THE NYC CONFLICTS OF INTEREST BOARD MUST BE RELEASED PURSUANT TO A FOIL REQUEST BY THE NEW YORK TIMES (FIRST DEPT).

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