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July 17, 2017

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law


Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 2017 NY Slip Op 05547, Appellate Division, Fourth Department

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records.

In its review of a Supreme Court's ruling directing the Board to provide the records demanded by Kirsch the Appellate Division addressed the following objections raised by the Board:

1. Standing to submit a FOIL request.

The Board contended that Kirsch's attorney, Michael A. Starvaggi, Esq., the individual submitting the FOIL request, "lacked standing" to maintain the Article 78 action. The Appellate Division rejected this claim, explaining FOIL provides that "Any person denied access to a record may appeal and seek judicial review of any adverse appeal determination," and "any person on whose behalf a FOIL request was made has standing to maintain a proceeding to review the denial of disclosure of the records requested."

The court noted that the administrative appeal letter expressly stated that Starvaggi was making the request on behalf of Kirsch and concluded that Kirsch had "standing to maintain this proceeding."

2. Statute of Limitations.

Notwithstanding the fact that the Board's claim that the action was untimely was not "preserved for [the Appellate Division's] review," the court elected to consider the merits of its argument that the proceeding is barred by the statute of limitations. In so doing, the Appellate Division opined that the Board "failed to meet [its] burden of establishing that petitioners received notice of the final decision denying the administrative appeal more than four months before the proceeding was commenced.

3. Adding another party to the action.

The Board objected to Supreme Court's granting Starvaggi's oral motion to amend Kirsch's Article 78 petition "to add Starvaggi as a petitioner." The Appellate Division sustained the lower court's granting his oral motion "under the circumstances" in this action. Significantly, the court said that the relation back doctrine* permited the addition of Starvaggi after the expiration of the statute of limitations as the claims brought by Starvaggi and Kirsch are identical in substance - i.e., that Board improperly denied the FOIL request made by Starvaggi on behalf of Kirsch, and Starvaggi and Kirsch are united in interest in seeking compliance with that request.

4. Exemptions from disclosure.

The Board contended that the emails may contain "exempt material." The Appellate Division affirmed the Supreme Court directing the Board to provide Kirsch and Starvaggi  with the requested emails, "with any claimed exemptions from disclosure documented in a privilege log that may be reviewed by the court."

Addressing the Board's "broad allegation here that the [emails may] contain exempt material," the Appellate Division said that such a representation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically to deny petitioner[s] all access to the requested material."

Further, said the court, should the Board establish that a requested email contains exempt material, "the appropriate remedy is an in camera** review and disclosure of all nonexempt, appropriately redacted material."

5. Identification of the records demanded.

Noting that Kirsch and Starvaggi had "reasonably described" the requested emails thus enabling the Board to identify and produce the records, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, held that the Board "cannot evade the broad disclosure provisions of [the] statute . . . upon the naked allegation that the request will require review of thousands of records."

It should be remembered that the basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The release of certain public records, such as those identified in Civil Rights Law §50-a, Education Law §1127 - Confidentiality of records and §33.13 Mental Hygiene Law - Clinical records, are examples of records to which access has been limited by statute. 

Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. Submitting a "formal" FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a formal FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian of the record could rely upon in denying a FOIL request, in whole or in part, for the information or records sought.

* Apply the Doctrine of Relation Back permits "something done today" to be treated as though it "were done earlier" notwithstanding the fact that the otherwise controlling statute of limitations had already expired.

** A hearing held conducted by the court or hearing officer in private or when the public is excluded from the proceeding to consider a particular issue is referred to as being held in camera.

The decision is posted on the Internet at:

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