The New York City Department of Citywide Administrative Services [DCA] denied Petitioners' FOIL requests for records pursuant to New York State's Freedom of Information Law, Public Officers Law §§84-90, seeking "[a] list containing the name, race, gender, current salary, current job title, city start date, salary on city start date, [and] title start date, of all employees of" several City agencies over a period of 10 years. Petitioners appealed DCAS' decision.
Supreme Court directed DCAS to produce certain records Petitioners had demanded of that entity. Supreme Court also denied a motion submitted by the Respondent Fire Department of the City of New York [FDNY] involving certain records Petitioners sought from FDNY.
The Appellate Division "unanimously modified, on the law" with respect to the extent of the court's Supreme Court's denying the petition with respect to the FOIL requests Petitioners had submitted to DCAS. The Appellate Division sustained DCAS's denial of Petitioner's FOIL requests and, citing Matter of Oustatcher v Clark, 217 AD3d 478, opined that DCAS's rejection of the Petitioners' FOIL request was not "affected by an error of law".
Observing that Supreme Court had improperly ordered DCAS to produce information possessed by a different agency, the Financial Information Systems Agency [FISA], the Appellate Division explained that FOIL does not require an agency "to prepare any record not possessed or maintained by" that agency and DCAS's witness had given unrebutted testimony that several of the eight categories of requested information were maintained in a separate database by FISA, not DCAS. Thus, said the court, DCAS was "under no obligation" to provide the information held be FISA and Supreme Court improperly required DCAS to undergo a process that would constitute the creation of a new record.
Addressing another aspect of Petitioners' FOIL request, the Appellate Division observed that Petitioners had also sought FDNY "... records[] pertaining to cases initiated by the Bureau of Investigations and Trials ('BIT[S]')" . . . , including . . . details of all BIT[S] cases initiated against members of the FDNY, with a breakdown of each case identified by: [c]ase number; [b]ureau . . . ; [i]nfractions charged; [r]ace of charged party; [g]ender of charged party; [d]isposition of the case; and [d]iscipline imposed on charged party.".
The Appellate Division said Supreme Court "properly concluded that compliance with this aspect of the demand set out in Petitioners' FOIL request would constitute the "creation of a new record" as FDNY's witness gave unrebutted testimony that the database containing BITS case records does not contain race and gender information and to match BITS information with employees' races and genders contained in an independent database would entail much more than a simple manipulation of computers to transfer existing records.
Click HERE to access the Appellate Division's decision posted on the Internet.