In this proceeding pursuant to CPLR Article 78 to compel the production of certain documents pursuant to the Freedom of Information Law [FOIL]* sought by the Petitioner [Plaintiff], the Appellate Division explained:
1. As a general rule, a governmental entity [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.
2. Pursuant to Public Officers Law §89[a], some information maintained in an electronic format may be retrieved, compiled, and disclosed if doing so requires only a "reasonable effort".
Here, said the court, the Records Access Officer [Custodian] of the records in question stated that he lacked the technical sophistication to manually transfer the email addresses onto an Excel spreadsheet in order to provide an electronically formatted response to the Plaintiff's FOIL request.
However, the Appellate Division said Custodian did not address whether any other employee of the Agency could, with a reasonable degree of time and effort, create "an Excel spreadsheet" that would comply with the terms of Plaintiff's FOIL request. Citing Data Tree, LLC v Romaine, 9 NY3d at 466, the court opined that "[i]t cannot be said, therefore, that the [Plaintiff's] amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by [the Agency's] employees could be undertaken to provide an electronically formatted response."
The Appellate Division also noted that Supreme Court should not have granted that portion of the Agency's motion to dismiss that part of the Plaintiff's amended petition alleging FOIL violations pertaining to the Petitioner's request for a copy of the Custodian's email and its recipient list. The amended petition, said the court, described a portion of the email as being defamatory toward Plaintiff.
Addressing the alleged "defamation," the court indicated that in an electronic response by the Agency's attorney [Counsel], the Petitioner was told that the Custodian was not required to respond to "factual characterizations and legal conclusions," which might be a cryptic reference to any potential allegation that the Custodian's email at issue was defamatory. However, said the court, Counsel stopped short of addressing whether the email and its recipient list would or would not be provided by the Agency and the Agency gave no further response related to this request.
Finally, as the Agency did not advise Petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Appellate Division said that the Supreme Court erred in concluding that the Petitioner's administrative appeal was time barred. Accordingly, the Appellate Division concluded that Supreme Court should not have granted that branch of the Agency's motion which was to dismiss so much of the amended petition as related to that FOIL request and remitted the matter to Supreme Court "for a determination on the merits after the Agency serve and file their answer and, if necessary, complete the administrative record."
* Public Officers Law Article 6.
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