For the purposes of the Freedom of Information Law, the ability of an agency to retrieve a document is distinguishable from whether the description in the request was sufficient to allow the agency to locate it

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 Petitioner declined to do so and DOE deemed Petitioner's FOIL request to have been "withdrawn".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.

Settling a disciplinary action subject to compulsory arbitration by entering into a "Last Chance Agreement"

Plaintiff, a tenured teacher employed by a New York State school district [Employer] was served with  disciplinary charges alleging Plaintiff had failed to accurately document speech services during the 2016-2017 and 2017-2018 school years. 

Plaintiff and the Employer subsequently entered into a "Last Change Agreement" [LCA] to settle the disciplinary action whereby the parties mutually agreed that "if, at any time prior to the last day of the 2021-2022 school year following written notice and a 45-day period to cure", Plaintiff was determined by a hearing officer "after a hearing pursuant to Education Law §3020-a to have engaged in similar neglect, the [Employer] would be entitled to terminate the [Plaintiff's] employment."

On April 5, 2021, the Employer notified the Plaintiff that she was not in  compliance with the LCA due to her failure to accurately document speech services during the 2020-2021 school year and directed her to cure the deficiencies within 45 days.

Plaintiff failed to timely to cure alleged failure as required by the terms of the LCA and the Employer filed disciplinary charges against Plaintiff.

In the course of the Education Law §3020-a disciplinary action which followed, Plaintiff contended that the charged misconduct was not substantially similar to the misconduct giving rise to the LCA "because she had been assigned additional duties and responsibilities due to the COVID-19 pandemic and that she did enter the required information to accurately document the services she provided".

The hearing officer permitted the Employer to rebut Plaintiff's assertions by demonstrating that the additional entries submitted by Plaintiff "were entered after the 45-day period to cure and that prior to the COVID-19 pandemic, she had failed to document her sessions during the 2019-2020 school year, which was outside of the charged period". 

The disciplinary hearing officer issued a determination which sustained the charges and specifications alleged by the Employer and authorized the termination of Plaintiff's employment. Plaintiff appealed the hearing officer's decision in an effort to have it vacated, contending that the [disciplinary] arbitration did not conform with Education Law §3020-a. Supreme Court denied the Employer's motion to dismiss Plaintiff's appeal and ultimately granted Plaintiff's petition. The Employer appealed the Supreme Court's judgment.

The Appellate Division reversed the Supreme Court' ruling and granted the Employer's motion to dismiss Plaintiff's petition; explaining:

1. "The standard of review mandated by Education Law §3020-a (5)(a) is that of CPLR article 75, which provides that an arbitration award may be vacated only on a showing of misconduct, bias, excess of power, or procedural defects";

2. Where, as here, the obligation to arbitrate arises through statutory mandate, the hearing officer's determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily;

3. The award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious; and

4. In addition, CPLR Article 75 reviews questions whether the decision was rational or had a plausible basis.

Citing Matter of Harvey v Board of Educ. of the Uniondale Union Free Sch. Dist., 221 AD3d 899, the Appellate Division then observed that "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists" and concluded that the determination recommending the termination of the termination of Plaintiff's employment was rational, had evidentiary support, and was not arbitrary and capricious.

The Appellate Division's decision also observed that a "last chance agreement constituted a valid, binding contract, and the neglect complained of [in the instant action], to wit, the failure to accurately document speech services during the 2020-2021 school year, was identical to the previously charged conduct".

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

Disability included in New York State's Aging Law and Policy

On October 8, 2025, Albany Law School's Government Law Center and the Office of the Chief Disability Officer of the State of New York [OCDO] hosted Albany Law School's Nancy M. Sills 76th Memorial Lecture. 

Leaders and advocates from the OCDO discussed the intersections of disability and aging and efforts being made to include the needs of individuals with disabilities in New York State's aging laws and policies.

Click HERE to access the Podcast of the presentation posted on the Internet.

Amending an application for Workers' Compensation benefits to include alleged consequential injuries

Claimant for Workers' Compensation benefits appealed the Workers' Compensation Board's [Board] decision disallowing Claimant's request to amend his earlier established claim to include consequential injuries.

Claimant had established a claim for workers' compensation benefits based upon an exacerbation of a preexisting chemical sensitivity and Claimant's employer reassigned Claimant to work at a different location. Subsequently, Claimant's treating physician advised Claimant's employer that Claimant's reassignment to the new location had resulted in "a complete resolution" of Claimant's symptoms and requested that the reassignment be made permanent. Claimant continued to work at the new location until January 2020 when he took a leave of absence to care for his ailing mother and commenced working from home. 

Claimant subsequently complained of certain mental health difficulties to his treating physician, asserting that, while working from home while on leave, he was harassed by his supervisor concerning his work. Claimant's physician diagnosed Claimant with a number of psychological conditions related to those complaints and Claimant then sought to amend his established chemical sensitivity claim claim "to include anxiety, depressed mood, major depressive disorder and insomnia as consequential injuries".

A Workers' Compensation Law Judge [WCLJ] found that Claimant had not demonstrated that his psychological injuries were a direct or natural consequence of his initial chemical related injury and disallowed the claim for "consequential injuries". The Workers' Compensation Board affirmed the WCLJ's findings, and Claimant appealed the Board ruling.

The Appellate Division sustained the Board's determination, noting:

1. Substantial evidence supported the Board's finding that Claimant's alleged psychological injuries did not result from a fear of being assigned to work at his original location;

2. Claimant "has not demonstrated that the asserted psychological injuries resulted directly and naturally from his prior chemical insensitivity disability so as to establish a consequential injury"; and

3. Claimant's allegations with respect to harassment, "were too remote to establish a causal nexus to the prior disability, even if the actions could constitute a separate and distinct claim for work-related stress.

The Appellate Division said its "review of the record as a whole" found no basis to disturb the Board's determination that Claimant failed to demonstrate, "by competent medical evidence, a causal relationship between his established disability and his alleged consequential injuries", and held that the Board's decision to reject Claimant's alleged consequential injuries was supported by substantial evidence.

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

Selected items posted on blogs during the week ending October 17, 2025

How AI-Powered Agents Streamline State and Local Service Delivery Explore how AI agents can help state and local governments handle routine tasks, streamline operations, and give staff more time for complex issues. DOWNLOAD

Preparing Utilities & Local Governments for a Paperless World The paperless future is here. Is your utility or local government ready? From rising postage costs to time-consuming manual processes, the shift to digital billing and payments is no longer optional — it’s essential. This resource explores how utilities can embrace a paperless future to cut costs, improve operational efficiencies, and meet modern demands. DOWNLOAD

Transparency in Motion: Real-Time Data for Safer Streets and Stronger Communities Public safety agencies are under pressure to do more with less -- respond faster, operate more efficiently, and remain accountable to both leadership and the communities they serve. This paper explores how telematics and in-vehicle data are helping agencies meet those expectations and deliver measurable results.   DOWNLOAD

Human-Guided Automation: Smarter, Safer Endpoint Security Autonomous endpoint management keeps humans in control while boosting compliance, speed, and resilience.  READ MORE

Secure by Design: A Plan for Ransomware Defense From real-world examples of emerging extortion tactics to actionable guidance on vulnerability scanning, 24/7 detection, and incident response planning, this paper is a must-read for every government IT leader committed to safeguarding digital infrastructure and public trust. DOWNLOAD

When Disaster Strikes, Coordination Keeps Recovery Moving Who restores critical connections after natural disasters? See the teamwork behind recovery and the need for close coordination to speed recovery efforts. Watch the film.

Natural Disaster, National Attention Public Records Request Management Steps Up in Time of Need READ MORE