In its decision in a case involving a demand for "agency records" pursuant to New York State's "Freedom of Information Law" [FOIL, (New York State's Public Officers Law Article 6)], the Appellate Division said that:
1. "When 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*; and
2. Public Officers Law §89(3) "does not specify the manner in which an agency must certify that documents cannot be located; and
3. "Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required."
In a proceeding initiated pursuant to CPLR Article 78 to compel disclosure of certain records pursuant to FOIL, Petitioner in the instant matter appealed a Supreme Court decision, that, in effect, dismissed Plaintiff's complaint. The Appellate Division affirmed the Supreme Court's ruling, with costs.
Petitioner had submitted a request pursuant FOIL seeking "[a]ll communications" during a specific time period between "the Rockland County Clerk's [O]ffice" and several specified entities or offices "regarding issuance of pistol permits and the removal of license restrictions."
Initially the County denied the FOIL request on the ground that "responsive inter-agency and intra-agency records that are exempt from production have been withheld". Petitioner's appealed. Subsequently the County denied the Petitioner's appeal on different grounds, advising him that no records responsive to his request were found after performing "a new diligent search of emails and hard-copy documents using the search terms 'issuance of pistol permit' and 'removal of license restrictions and issuance of pistol permit'" and interviewing the Rockland County Clerk [County Clerk].
In October 2022, Petitioner commenced the instant proceeding pursuant to CPLR Article 78 against the County to compel disclosure of the records requested by Petitioner pursuant to FOIL. Supreme Court determined that a "hearing [was] required regarding the diligence of the [County's] search" and the County conducted a new search using "36 terms that were supplied by" the [Petitioner], "which yielded documents that the County maintained were protected by the inter-agency exemption".
At the subsequent hearing, which was limited to the issue of whether there had been a diligent search, the evidence at the hearing revealed that the Rockland County Clerk's Office's Records Access Officer and the County Clerk had "confirmed that no paper records responsive to the FOIL request existed and that a search of the County Clerk's emails had been performed at the request of one of the attorneys who testified at the hearing".
Supreme Court reviewed the documents produced and determined that "all of these documents were exempt from disclosure under FOIL". Petitioner appealed, contending that the County failed to perform a diligent search but did not challenge the Supreme Court's determination that the documents disclosed to the court and reviewed by the court were exempt from disclosure.
The Appellate Division opined that "contrary to the [Petitioner's] contention, the County demonstrated that it had satisfied its obligations under FOIL by presenting testimony at the hearing that all potentially responsive documents had been disclosed and that the County had conducted a diligent search for all responsive documents.
Further, observed the Appellate Division, "As the [Petitioner] did not substantially prevail, he was not entitled to an award of attorneys' fees", citing Public Officers Law §89[4][c][i and Matter of Breighner v Suffolk County, 237 AD3d at 930).
* See Matter of Breighner v Suffolk County, 237 AD3d 928, [internal quotation marks omitted]; Public Officers Law §89[3][a]; and Matter of Rattley v New York City Police Dept., 96 NY2d 873 at 875).
Click HERE to access the Appellate Division's decision posted on the Internet.