In this proceeding pursuant to CPLR Article 78 to compel disclosure of certain records pursuant to the Freedom of Information Law [FOIL], Public Officers Law Article 6, Supreme Court essentially denied Plaintiff's petition and dismissed the proceeding.
Plaintiff [Reporter] had submitted a FOIL request to the Suffolk Department of Information Technology [IT] for a "CSV export of the County's employee, which request was denied by IT's record access officer. Reporter then filed an administrative appeal with County's FOIL appeals officer. Reporter's appeal was denied on the ground that the IT department did "not maintain" the requested record.
Reporter next commenced the instant CPLR Article 78 proceeding to compel disclosure of the County's employee telephone directory and for an award of attorneys' fees and litigation costs.
As above noted, Supreme Court denied the petition and dismissed the proceeding, concluding, among other things, that the Defendants had demonstrated that the IT department did not possess a county-wide telephone directory and that it was not under an obligation to create one. Reporter appealed the Supreme Court's judgment.
Stating that "In order to promote open government and public accountability, FOIL imposes a broader duty on government to make its records available to the public", the Appellate Division reversed the lower court's decision noting that "FOIL proceeds under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" [and] "All government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)".
In the words of the Appellate Division: "[W]hen faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search" .
Further, the Court noted that "[T]he burden of proof rests solely with the agency to justify the denial of access to the requested records, and this burden must be met in more than just a plausible fashion as FOIL and requires that the agency 'shall certify that it does not have possession of such record or that such record cannot be found after diligent search'".
Although as 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, "even where an entity properly certifies that it was unable to locate requested documents after performing a diligent search, the person requesting the documents may nevertheless be entitled to a hearing on the issue where he or she can 'articulate a demonstrable factual basis to support [the] contention that the requested documents existed and were within the [entity's] control'".
Finding that the Supreme Court had improperly denied Reporter's petition because the affidavit of the IT department's employee, which Defendants submitted in opposition to Reporter's petition, raised "questions of fact . . . as to whether at least some of the requested records can be located, identified, and produced" by the IT department, the Appellate Division reinstated Reporter's petition and remit the matter to the Supreme Court for further proceedings to determine the extent to which the IT department may possess responsive records.
As Reporter's petition remained undetermined, the Reporter's request for an award of attorney's fees and litigation costs was deemed premature.
Click HERE to access the Appellate Division's decision posted on the Internet.