In an action to obtain certain documents pursuant to New York State's Freedom of Information Law [FOIL], the Court of Appeals, citing Public Officers Law §89[3][a], said to trigger a government agency's obligation to produce records under FOIL the entity seeking the records "must submit to the agency a written request in which the records sought are 'reasonably described'". An agency, upon receiving such a request for records maintained electronically, must retrieve the records if it has the ability to do so "with reasonable effort".
The Petitioner in the instant CPLR Article 78 action had requested all emails between the New York City Department of Education [DOE] and a certain domain name during the period April 2021 to August 2022. DOE responded that the documents sought were "not reasonably described" because it could not "launch an effective search to locate and identify the records sought with reasonable effort."
In particular, DOE stated that attempts to search its emails "failed to execute" using the parameters provided by Petitioner, and asked Petitioner to focus the request on a narrower timeframe or specific parties or to provide key terms to search. Petitioner declined to do so and DOE deemed Petitioner's FOIL request to have been "withdrawn".
Petitioner filed an administrative appeal. The DOE acknowledged that it "understood" Petitioner was requesting emails having certain domain names but its electronic searches for those emails "failed to execute" whereupon DOE "concluded that the request was not reasonably described".
Petitioner commenced the instant CPLR Article 78 proceeding seeking a judgment directing DOE to provide access to the documents sought. DOE response indicated "that that all of its attempts to search its emails for the requested records timed out because there were over one million email accounts to search".
Supreme Court denied the petition and the Appellate Division affirmed the Supreme Court's decision, holding that the documents were not "reasonably described" as required under Public Officers Law §89(3)(a) because "[t]he administrative record and the DOE's proffered affidavits demonstrate 'that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document[s] from the virtual files through an electronic word search . . . [by] name or other reasonable technological effort' "
The Court of Appeals conclude that DOE and the Appellate Division had "conflated Petitioner's obligation to reasonably describe the documents with the agency's obligation to retrieve the documents if it has the ability to do so with reasonable effort". The Court explained "The requirement that requested records be reasonably described exists to ensure that the responding agency has the ability to locate the records sought". Here, said the Court, DOE concedes that it understands what documents Petitioner seeks and knows they are located in the agency's electronic email database. Further, the record established that the description in the request was sufficient for the DOE to fashion and run electronic searches which, if successful, would have retrieved the records sought.
However, said the Court of Appeals, "The fact that those searches timed out or failed to execute using the DOE's software is not determinative of the legal sufficiency of the request". Noting that "Whether the DOE can retrieve those documents with reasonable effort is a separate question". The Court of Appeals said it declined "decide that question today" and if DOE "can retrieve the documents with reasonable effort, it must do so."
Citing Matter of Data Tree, LLC v Romaine (9 NY3d 459, the Court of Appeals held that "if the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information". The Court explained that it had articulated the reasonable effort requirement not as a facet of a petitioner's requirement to reasonably describe the documents sought, but as a requirement of the agency in responding to a written request in which the documents sought are reasonably described.
The Court of Appeals also cited Chapter 223, §6 Laws of 2008, noting that "the legislature codified aspects of Data Tree, including the reasonable effort requirement, in Public Officers Law §89(3)(a)".
Opining that "On its face, the reasonable effort language, as codified, applies to all instances where an agency is asked to make electronic records available and is best understood as providing that the responding agency must 'retrieve or extract a record or data maintained' in a computer system unless doing so requires the agency to undertake unreasonable efforts".
In the words of the Court of Appeals, "The amendment conforms with FOIL's consistent employment of a reasonableness standard in setting forth the myriad obligations of government agencies ... and balances the importance of open government in a free society ... with the logistical complications encountered by agencies in making electronic records available upon request. Nothing suggests that the legislature, in amending the statute, intended to modify the reasonable description requirement."
Evaluating the reasonable description and reasonable effort requirements separately the Court opined should alleviate the confusion that the combined test has produced. Whether a requestor has reasonably described an electronic record does not turn on the degree of effort necessary to retrieve it, and the inability of an agency to retrieve a document with reasonable effort does not implicate whether the description in the request was sufficient to allow the agency to locate it.
Again, if a responding agency can retrieve the requested documents with reasonable effort, it must do so. What constitutes reasonable effort is necessarily a case-specific determination, and efforts are not unreasonable solely because the agency declined to execute the requestor's preferred document retrieval method.
While FOIL imposes no obligation on the agency at the administrative level to describe its efforts to retrieve the requested records, the Court suggested that an agency might find it beneficial to describe its efforts in its correspondence with the requestor, since in a challenge to an agency's denial of access to the documents on this ground, the agency [1] has the burden to demonstrate that it cannot retrieve the requested documents with reasonable effort and [2] has the burden to establish that requested documents fall within a claimed statutory exemption.
While the DOE's claimed inability to retrieve the documents is not determinative of whether the request reasonably describes those documents, the Court observed that such an inability may bear on whether the DOE has the ability to retrieve the documents with reasonable effort.
The Court of Appeals, concluding that the matter should be remanded to the DOE for a new determination using the proper standard, reversed the Appellate Division's order, with costs and ordered "further proceedings in accordance with the Court of Appeals' instant opinion.
Click HERE to access the opinion of the Court of Appeal posted on the Internet.