When Technical Expertise is Required to Respond to A Freedom of Information Law Request

Municipal Law

A municipality or public agency’s lack of technical expertise is not a valid reason for denying of a Freedom of Information Law request.  Instead, such municipality or agency is required to seek the services of a third party having such expertise in order to produce a response.  See  Matter of County of Suffolk v. Long Island Power Authority, 2014 NY Slip Op 05540 (2d Dept.).  This principle comports with the public policy behind Freedom of Information Law (Public Officers Law Art.6; hereinafter “FOIL”)  that ”‘government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article’ [citations omitted].”  Suffolk v. LIPA, 2014 NY Slip Op 05540.

In 2011, Suffolk County filed a FOIL Request with Long Island Power Authority (LIPA) seeking certain electronically stored documents and records.  Id. LIPA denied the request, stating that “to the extent that any relevant records existed, they could not be accessed with reasonable effort, as LIPA no longer had the technology to retrieve them.”  Id.

Thereafter, Suffolk County commenced an Article 78 Proceeding to review LIPA’s denial of its request.  In that proceeding, LIPA asserted that “the requested documents were stored on back-up tapes that had been created using now-outdated technology . . . [;] [and further,] that restoration of the documents would entail a long and tedious process that could potentially close down LIPA’s computer operations.”  Id. In response, Suffolk County stated that “technology existed to retrieve the requested documents, and that outside service providers could be hired to perform the task if LIPA did not have the technical ability to do so.”  Id. Agreeing that LIPA’s denial of the request was proper, the Supreme Court dismissed the petition.

On appeal, the Appellate Division found that “[while] FOIL does not ‘require any entity to prepare any record not possessed or maintained by such entity’ [citations omitted] . . . , ‘[a]ny programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record’ (Public Officers Law § 89[3][a]).”  Suffolk v. LIPA, 2014 NY Slip Op 05540.  Further, the Court stated that “[a]n agency may not deny a request because it was too voluminous or burdensome if the request could be satisfied by engaging an outside service (see Public Officers Law § 89[3][a])[emphasis added]. Moreover, an agency may recover the costs of engaging an outside service from the person or entity making such a request (see Public Officers Law § 89[3][a]).”  Suffolk v. LIPA, 2014 NY Slip Op 05540.

Based on this analysis, the Appellate Division reversed the Supreme Court’s dismissal of the petition, holding that further proceedings were required to resolve the factual issues of “whether the petitioner requested data or records that could be retrieved or extracted with reasonable effort, whether the requests required the creation of new records, and whether the cost of the retrieval could be passed on to the petitioner.”  Id.

In practice, when a municipality receives a FOIL request, it must make diligent efforts to locate and produce the requested documents.  Even if a municipality lacks the technical expertise to respond to a FOIL request, it is required to make a reasonable effort to locate an outside service that could produce the requested information.  If a municipality does deny a FOIL Request, and that denial is challenged in court, the burden of proving that such denial was proper rests solely on the municipality.  As a cautionary note, if a court finds that a municipality improperly denied a FOIL request, the law provides that municipality may be ordered to pay the costs and attorney’s fees of the individual or entity that made the request.  See Public Officers Law § 89(4)(b).

 

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