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June 02, 2014

The Freedom of Information Law typically does not require an entity to create records not in existence in order to satisfy a FOIL request


The Freedom of Information Law typically does not require an entity to create records not in existence in order to satisfy a FOIL request
2014 NY Slip Op 03031, Appellate Division, First Department

An individual [Individual] submitted a FOIL request for certain information. Supreme Court dismissed his Article 78 petition and Individual appealed.

The Appellate Division sustained the lower court’s decision, explaining that the records sought by Individual had been destroyed in accordance with the custodian’s records retention schedule.*

Citing Public Officers Law §89[3][a], the Appellate Division said that "Nothing in [the Freedom of Information Law (FOIL) shall be construed to require any entity to prepare 'any record not possessed or maintained by such entity' except for certain categories of records not at issue here."

* 8 NYCRR N 188, State Government Archives and Records Management, sets out the Regulations of the Commissioner of Education addressing the retention and destruction of State records.
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