The Town received Plaintiff's Freedom of Information Law [FOIL] request and on the same day responded to the request by advising Plaintiff' that all of the requested records could be found in "permit files" on the Town's website. The Town then provided Plaintiff' with the appropriate the website's address, told Plaintiff how the website could be accessed via the Internet, and provided Plaintiff with information on how to access permit files via the Town's "public kiosk." The Town's letter to Plaintiff also indicated that "[Plaintiff's] FOIL [request] is now completed."
Petitioner administratively appealed the Town's determination, but the Town did not respond and Petitioner commenced the instant CPLR Article 78.
Supreme Court dismissed [1] Plaintiff's petition; [2] Plaintiff's application for an award of attorney's fees and litigation costs; and [3] Plaintiff's request for a judgment declaring that the Town acted unlawfully in withholding records from Plaintiff. Plaintiff appealed the Supreme Court's decision.
Observing that to promote open government and public accountability New York State' FOIL "imposes a broad duty on government to make its records available to the public", the Appellate Division explained that "[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".
Here, said the Appellate Division, the Supreme Court properly granted the Town's motion to dismiss that branch of Plaintiff's complaint which sought to compel the production of the "requested records" as the Town's FOIL response was not a denial but, in fact, informed the Plaintiff how to locate the requested records either via the Town's website or in person.
The Appellate Division's decision also noted that "Although the Town referred the [Plaintiff] to a publicly available website, the [Plaintiff] did not request the records in any specific format" and the Town was not required to certify that any requested records could not be found after diligent search as such a certification requirement is only triggered "when, in lieu of granting a FOIL request, the agency finds that it either does not possess the item requested or is unable to locate it after a diligent search".
Here the records requested were always available to the Plaintiff, who was so advised prior to the commencement of the Plaintiff's instant CPLR Article 78 proceeding and thus the litigation "did not trigger the production of such records".
Accordingly, the Appellate Division found that Plaintiff was not entitled to discretionary fees pursuant to Public Officers Law §89(4)(c)(i) "because even though Plaintiff administratively appealed the Town's FOIL determination and the Town did not provide a response, there was nothing to administratively appeal, as the Town did not deny the Plaintiff's FOIL request".
Click HERE to access the Appellate Division's decision posted on the Internet.