New York State's Freedom of Information Law imposes a broad duty on government agencies to make their records available to the public

The Petitioner in this CPLR Article 78 action commenced this proceeding against the Village, and other named individuals, [Respondent], to compel Respondent to disclose records she had requested under New York State's Freedom of Information Law [FOIL] after the Village denied Petitioner's request for certain records.

Supreme Court denied the petition and dismissed the proceeding, holding that "[m]any of the items sought in the FOIL request [were] not records per se, but an open ended array of papers ... which are not maintained as records and are not readily identifiable or retrievable." Petitioner appealed Supreme Court's ruling.

Noting that Supreme Court determined that Petitioner failed to "reasonably describe the documents so that they [could] be located", the Appellate Division reverse the lower court's decision and remitted the matter to it "for further proceedings on the petition".

The principal questions presented to the Appellate Division by Petitioner's appeal:

1. Were the requested records "reasonably described" so as to allow the Village to locate and identify them?; and

2. Did the Respondent satisfy its obligations under FOIL by maintaining a public website, on which [it alleged] much of the information sought by the Petitioner could be found?

With respect to the identification of the records sought by Petitioner, the Appellate Division opined that questions of fact exist as to the Respondent's ability to locate, identify, and produce the records requested by the Petitioner, thereby precluding a summary determination of the petition by Supreme Court.

As to the issue concerning the ability of the Respondent to satisfy the mandates of FOIL via Internet sites, the Appellate Division held that "the mere availability of government records on a public website is insufficient to satisfy a request under FOIL for reproduction of such materials". The Appellate Division noted that Petitioner's FOIL request included certain materials pertaining to recusals and conflict-of-interest disclosures by members of a Village Commission, various Village Boards, and other Village entities.

In opposition to the petition, Respondents had submitted affidavits asserting that agendas and minutes of public meetings were available on the Village's website "and were capable of being searched by anyone, without the necessity of a FOIL request" and "the vast bulk of the records requested by the [Petitioner were] not maintained in any manner that would allow the responsive documents to be identified in any manner that would be possible for the Village to undertake."

The Appellate Division explained that the Legislature declared that "government is the public's business" and "[T]o promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public". Indeed, said the court, "[a]ll records of a public agency* are presumptively open to public inspection," and FOIL is to be liberally construed to achieve its purposes, citing Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d at 225; and Matter of Data Tree, LLC v Romaine, 9 NY3d 454, at 463).

Further, opined the Appellate Division, "the burden of proof rests solely with the [custodian of the record] to justify the denial of access to the requested records [and] this burden must be met 'in more than just a plausible fashion'".

Concluding that Supreme Court should not have denied the petition and dismissed the proceeding, the Appellate Division reversed the lower court's judgment "on the law," reinstated Petitioner's action and remitted the matter to the Supreme Court  for further proceedings in accordance the Appellate Division's decision and directed Supreme Court promulgate "a new determination of the petition thereafter."

* FOIL is applicable to “agency” records, but FOIL's definition of “agency” expressly excludes New York State's Judiciary and the New York State Legislature as agencies within the ambit of FOIL. See Public Officers Law §86[3].

Click HERE to access the Appellate Division's decision posted on the Internet.

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New York Open Government Guide. Authored by Michael J. Grygiel, Esq., this study focuses on New York State's Freedom of Information Law [FOIL]. Click HERE to access this resource posted on the Internet.

 

 

 

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A Guide to the NYPD Hiring Process By Kevin Sheerin, Esq.

 

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Advancing a plausible "gender stereotyping” claim

Plaintiff appealed the judgment of a federal district court granting Respondents'  motion for a judgment on the pleadings on the court's determination that Plaintiff failed to plead a plausible gender discrimination* claim within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.

Plaintiff had filed a complaint against the Respondents alleging Respondents had engaged in "gender stereotyping" in violation of Title VII when he was terminated from his job with the New York State Department of Environmental Conservation after 20 years of service following a disciplinary action in which he had been found guilty of sexual harassment.

The federal district court had dismissed Plaintiff’s complaint, explaining that the complaint “fails to allege any facts that support even a minimal inference of gender stereotyping” and then declined to grant Plaintiff leave to amend his complaint on the ground that it would be futile**. Plaintiff appealed the court's judgment.

"In analyzing [Plaintiff's] request to amend his complaint",*** the Circuit Court of Appeals, Second Circuit, said it reviews a district court’s decision denying leave to amend as futile "under a de novo standard." Further, citing Balintulo v. Ford Motor Co., 796 F.3d 160, the Circuit Court noted whether or not an individual's actions amounted to sexual harassment "is not for this Court to decide, as Title VII claims are not appropriately used to collaterally attack any adverse employment decision" such as the individual's termination following a disciplinary action .

As Plaintiff provided no information as to how he would amend his complaint to correct the deficiencies earlier identified by the federal district court, the Circuit Court said the district court was correct in concluding that granting Plaintiff's leave to amend his complaint would be futile.

 * Gender stereotyping refers "ascribing certain attributes, characteristics and
roles to people based on their gender".  

** A proposed amendment to a complaint is deemed futile when the amendment  “could not withstand a motion to dismiss.”

 *** The Circuit Court observed Plaintiff had the opportunity to amend his complaint after Respondents' motion to dismiss his complaint was filed by Respondents but Plaintiff stated in his answer to Respondents' motion that he “has not sought to amend his complaint".

Click HERE to access the Circuit Court's decision posted on the Internet.