Appellate Division rules on unusual FOIL requests Trial ordered on costs appropriate to voluminous requests |
On Board Online • May 27, 2013
By Kimberly A. Fanniff
Senior Staff Attorney
Over a four-month period, John L. Weslowski sent as many as eight separate emails per day to Rockland County officials to request information under the state Freedom of Information Law (FOIL). In one email, Weslowski requested 18 months of records relating to use by 33 county officials and employees of any and all Internet service, telephone service, mobile service, Blackberry or other communication or search device, including browser time by user and category. Other requests asked for all records pertaining to each employee of the county after July 7, 1998 and all records regarding any litigation against the county.
A ruling by the Appellate Division of state Supreme Court, Second Department, in Weslowski v. Vanderhoef, is one of several recent cases in which branches of the Appellate Division addressed how governmental entities should respond to extensive or unusual FOIL requests.
Rockland County responded by informing Weslowski that fulfilling his request would necessitate the production of tens of thousands of pages of documents and would create an enormous administrative burden that would interfere with day to day operations. While the county ultimately granted the requests, it conditioned disclosure upon pre-payment of certain estimated costs.
Prepayments ranged from $239 to $156,112, depending on the request. Weslowski appealed to the County Records Access Appeals Officer who assumed the estimated costs were made in good faith and concluded the county could withhold the records until pre-payment was made.
Weslowski brought suit in state Supreme Court seeking compliance with his request without the pre-payment of estimated costs. The court dismissed the petition. The Second Department reversed and ordered a trial.
According to the Second Department, an agency must articulate particularized and specific justification for requiring the pre-payment of costs. In examining the costs, the court found evidence that some costs were properly based on FOIL provisions authorizing charges for paper copies of records not electronically maintained and employee time needed to retrieve or extract data from electronic databases. However, the county indicated that it was including charges for time employees spent searching for paper documents, which is impermissible.
Additionally, the county referred to costs for time spent creating entirely new records and costs to compensate the county for “extraordinary efforts to retrieve or extract records or data.” FOIL does not require an entity to prepare a copy of any records not possessed or maintained by such entity and further only requires an entity to retrieve or extract data maintained electronically if it can do so “with reasonable effort.” Therefore, the court found that there was a triable issue of fact as to whether the county has the ability to retrieve or extract data and whether some records sought were not actually maintained by the county and thus the petitioner had no right of access. The case was remanded to the lower court for trial on the issues outlined in the Second Department’s decision.
Two other recent cases delve into privacy issues and whether certain information was protected from disclosure. In Matter of Thomas v. New York City Education Department, a teacher, now retired, sought copies of investigation records created in response to his 2010 complaint that administrators at the school where he worked violated provisions of the No Child Left Behind Act, including misappropriating certain federal funds. Thomas’ request was denied on the grounds that the records related to unsubstantiated allegations of misconduct and their release would constitute an unwarranted invasion of personal privacy of the employees in question.
The Appellate Division, First Department, explained that it must decide whether any invasion of privacy is unwarranted by balancing the privacy interests at stake against the public interest in disclosure of the information. According to the court, issues involving why a governmental agency determined a complaint concerning a violation of federal law is allegedly unsubstantiated are of “significant public interest.” The First Department stated, “There is no statutory blanket exemption for investigative records, even where allegations of misconduct are ‘quasi criminal in nature’ or not substantiated.”
Relying on advisory opinions of the state Committee on Open Government and prior court decisions, the court found that generally records relevant to the performance of a public employee’s official duties are available and disclosure would not constitute an unwarranted invasion of privacy. Given the investigation concerned the performance of school administrators in their official duties, the court remanded the matter for an in camera inspection of the documents to determine if redaction could strike the appropriate balance between personal privacy and public interest and whether portions of documents would be exempt as intra-agency or inter-agency records that are not statistical or factual data.
Lastly, the Third Department of the Appellate Division ruled in favor of the state Teachers’ Retirement System (TRS) regarding its refusal to supply the names of retirees that corresponded to information released about benefits paid by TRS. Provisions of FOIL exempt from disclosure the “home address of an officer or employee, former officer or employee or of a retiree of a public employee’s retirement system; nor shall anything … require the disclosure of the name or home address of a beneficiary of a public employees’ retirement system …”
In Empire Center for New York State Policy v. New York State Teachers’ Retirement System, the petitioner argued that there was a distinction between the words “retiree” and “beneficiary” which made disclosure of the retiree’s names possible. The Third Department acknowledged the legitimacy of the petitioner’s argument but said it was bound by a previous Court of Appeals decision which ruled that the neither the names nor home addresses of retirees of a public retirement system may be disclosed. Therefore, TRS was right to deny the FOIL request for the names of retired members.