Plaintiff' in this action submitted five requests pursuant to New York State's Freedom of Information Law* [FOIL] to Respondent [State College] seeking several categories of documents including email correspondence between certain employees over specified date ranges and, or, containing references to Plaintiff.
The State College's records access officer [RAO] produced one category of responsive records but, for all remaining categories except Category 2 of FOIL request No. 3 and Category 2 of FOIL request No. 4, the RAO advised Plaintiff that review, redaction and production of responsive records would take several months and would be released on a rolling basis. Plaintiff contended that the extended time frames for those requests were unreasonable and pursued administrative appeals.
The FOIL Appeals Unit [FAU] of Respondent State University of New York [SUNY] rejected Plaintiff's claim that the extensions Respondents granted themselves to produce responsive records were unreasonable and thus were constructive denials of the requests. The FAU also sustained the RAO's two actual denials, contending the relevant requests were "very broad and without subject matter limitation, [and] therefore responsive records could not be located with reasonable effort."
Plaintiff next commenced the instant CPLR Article 78 proceeding to, among other things, compel production of the requested categories of documents and recover counsel fees. Respondents moved, pre-answer, to dismiss the petition, which Plaintiff opposed.
Supreme Court granted the Respondents' motion, dismissed the petition and denied Plaintiff's request for counsel fees. Plaintiff appealed the Supreme Court's ruling.
As an initial matter, the Appellate Division addressed Plaintiff's challenges to the reasonableness of Respondents' various extensions of time and held them either moot by Respondents' disclosure of the requested documents or not properly before the Court for failure to exhaust administrative remedies.
As to the two actual denials, Plaintiff argued, and Respondents concede, that the petition was improperly dismissed on the ground that the relevant categories of documents were not reasonably described. The Appellate Division said it agreed Plaintiff with respect to these two categories of sought consisting of emails exchanged between two identified College employees over specified date ranges, satisfied Plaintiff's "initial burden under Public Officers Law §89(3) (a) to reasonably describe the records sought so that [Respondents] can locate them", citing Matter of Wagner v New York City Dept. of Educ., 45 NY3d 93, and other New York State Court decisions.
With respect Respondents' administrative denials based on the related, but separate, consideration as to whether it would be unduly burdensome for Respondents to comply with Plaintiff's request, the Appellate Division noted that "When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so", citing Public Officers Law §89[3][a]).
The Appellate Division then observed that what constitutes reasonable effort is necessarily "a case-specific determination", noting that the motion papers are insufficient to resolve that issue and Respondents must be accorded an opportunity to answer the petition with evidence satisfying their burden "to demonstrate that [they] cannot retrieve the requested documents with reasonable effort".
Accordingly, the Appellate Division held that the part of the Plaintiff's petition challenging nondisclosure of Category 2 of FOIL request No. 3, and Category 2 of FOIL request No. 4, must be reinstated and because that part of the petition remains undetermined, Supreme Court's denial of counsel fees is premature. The Appellate Division then ruled that "the judgment is modified, without costs, by reversing so much thereof denied to that extent; and, as so modified", affirmed the Supreme Court's ruling.
* Public Officers Law Article 6
Click HERE to access the Appellate Division's decision posted on the Internet.