February 7, 2018

The Freedom of Information Law does not require an agency to formulate a final determination in the event there is none in existence

The Freedom of Information Law does not require an agency to prepare a "final determination" in the event there is none in existence 
Correction Officers' Benevolent Assn. v New York City Dept. of Corr., 2018 NY Slip Op 00522, Appellate Division, First Department

Supreme Court denied the Correction Officers' Benevolent Association [COBA] petition to compel the New York City Department of Corrections [Corrections] to produce all information pertaining to Correction's decision not to promote the individual petitioners from Correction Officer to Correction Captain it sought in its Freedom of Information Law (FOIL) request.

The Appellate Division affirmed the lower court's ruling, explaining that Corrections had met  its burden of "articulating a particularized and specific justification for denying access" to the requested documents on the grounds that the documents were exempt from disclosure as nonfinal intra-agency materials that "are entirely advisory in nature and rendered only to aid the actual decision-maker[s]"

The court rejected COBA's argument that the requested documents are "effectively the final documents because there are no later documents providing reasons for the failures to promote, other than the conclusory notification letters that the candidates were passed over."

Noting that Corrections admitted that the decision makers considered the requested documents in determining whom to promote, it stated that no documents exist encapsulating the final decision, other than the notice it provided to COBA.

Finding that there was no statutory basis to look beyond Correction's representation the Appellate Division the Appellate Division, citing Kheel v Ravitch, 93 AD2d 422, 430 [1st Dept 1983], affd 62 NY2d 1, noted that FOIL does not require agencies "to formulate a final determination where none exists."

The decision is posted on the Internet at:

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