Weslowski v. VanderhoefWeslowski v. Vanderhoef
In a proceeding pursuant to
The petitioner in this case submitted numerous voluminous requests to the County of Roсkland for disclosure of public records pursuant to the Freedom of Information Law (
For example, one email requested, among other things, records relating to the use, by 33 enumerated county officials and employees, of “any and all internet service, telephone service, mobile phone service, blackberry service, or other communications or search device” over an 18-month period. The petitioner requested that the records show “browse time by user and category” and “site categorization details.” A later email included a similar request for a different 18-month period. Still other emails contained requests for all records “pertaining to usage of the County‘s computer system to search for, access, or download materials from internet websites using any or all of [certain enumerated search terms].”
In yet another email, the petitioner requested, among other things, all records maintained by the County of Rockland “pertaining to any person who was an emplоyee or officer of the County of Rockland at any time on or after July 7, 1998.” The petitioner also sought “[a]ll records pertaining to any action at law or in equity . . . filed at any time on or after July 7, 1998 by or against [certain listed County employees or officers] in any court.” The petitioner requested all court documents, including pleadings, motions, memoranda, orders, transcripts, affidavits, exhibits, correspondence (including emails), and stipulations or settlements.
The County responded to the petitioner‘s requests in a series of emails from the Records Access Officer for Rockland County (hereinafter the Access Officer), which attempted to describe the steps that would have to be undertaken in order to comply with each of the petitioner‘s requests. The County was unable to quantify the magnitude of some of the requested information, but estimated that some individuаl requests would necessitate the production of tens of thousands of pages of docu-ments.
The County granted the requests, but conditioned disclosure upon the prepayment of certain estimated costs that the County anticipated that it would incur in providing the requested materials. Thеse estimated costs included, among other things, sums to cover the hourly salaries of county employees who would be involved in complying with the petitioner‘s request. The County ultimately required the petitioner to make various payments ranging from $239.89 to $156,112.00, to cover the estimated costs associated with producing the requested documents.
The petitioner appealed these determinations to Terry D. Grosselfinger, the Records Access Appeals Officer in Rockland County (hereinafter the Appeals Officer). The Appeals Officer stated that he would give the County “the benefit of the doubt,” and assume that the estimated costs were made in good faith. The Appeals Officer concluded that the estimated costs were permissible, and that the County could withhold the records until the estimated costs were paid.
The petitioner commenced this рroceeding in the Supreme Court seeking, among other things, to review the determination of the Appeals Officer and to compel the County to comply with FOIL, to prohibit the requirement that he pay the estimated costs, and to desist from engaging in practices designed to impair his access to the requested records. The Supreme Court, without holding a trial, denied the petition and, in effect, dismissed the proceeding. The pеtitioner appeals, and we reverse the order and judgment insofar as appealed from.
The Legislature has declared 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” (
Accordingly, courts have recognized that agencies were not required to compile or reorganize information into new records that were not otherwise maintained during the course of their operations (see Matter of Gabriels v Curiale, 216 AD2d 850, 851 [1995]; Matter of White v Regan, 171 AD2d 197, 201 [1991]; Matter of Guerrier v Hernandez-Cuebas, 165 AD2d 218, 220 [1991]; Matter of Wattenmaker v New York State Employees’ Retirement Sys., 95 AD2d 910, 910 [1983]; Matter of Gannett Co. v James, 86 AD2d 744, 746 [1982]; Matter of Gannett Co. v County of Monroe, 59 AD2d 309, 313 [1977]; cf. Matter of Locator Servs. Group, Ltd. v Suffolk County Comptroller, 40 AD3d at 761). As agencies progressively moved to maintain more and more information in electronic formats, however, the line between locating and retrieving an electronic record and creating an entirely new record comprising information maintained by the agency became increasingly blurred.
The Court of Appeals addressed this issue in its 2007 decision in Matter of Data Tree, LLC v Romaine (9 NY3d 454 [2007]). In that case, the Court stated that “if [agency] records are maintained electronically . . . and are retrievable with reasonable effort, that agency is required to disclose the information” (id. at 464). The Court reasoned that, “[i]n such a situation, the agency is merely retrieving the electronic data that it has already compiled and copying it onto another electronic medium” (id. at 464-465). “A simple manipulation of the computer necessary to transfer existing records should not, if it does not involve significant time or expense, be treated as creation of a new document” (id. at 465).
In Matter of Data Tree, LLC v Romaine, the parties submitted evidence as to how the requested information was stored on the agency‘s computer system and what efforts would need to be undertaken in order to provide it to the requesting party (see id. at 466). In light of the conflicting evidence, the Court ultimately concluded that there were “questions of fact . . . as to whether disclosure may be accomplished by merely retrieving information already maintained electronically by the [agency] or whеther complying with [the FOIL] request would require creating a new record” (id.).
Furthermore, the 2008 amendments added language which prohibited an agency from denying a request because it was too voluminous or burdensоme if the request could be satisfied by engaging an outside service (see
In addition, an agency may recover “the actual cost of the storage devices or media provided to the person making the request in complying with such rеquest” (
The sponsors of the 2008 amendments, in memoranda to the Governor, both portrayed the amendments as balanced, in that
The Committee on Open Government, the agency responsible for oversight and advice with regard to FOIL, opined that the amendments would be “groundbreaking,” and that they “would, for the first time, authorize agencies to determine and assess a fee to be charged on the basis of an [agency] employee‘s time” (Letter from St Comm Open Govt, July 3, 2008 at 18-19, Bill Jacket, L 2008, ch 223). It interpreted the amendments to provide that “in those instances in which substantial time is needed to prepare a copy, at least two hours of an employee‘s time, an agency could charge a fee based on the cost of the storage medium used, as well the hourly salary of the lowest paid employee who has the skill needed to do so” (id.).
The views of the Committeе on Open Government are reflected in the regulations it drafted in 2009 (see
Here, the County granted the petitioner‘s requests, but conditioned disclosure upon the prepayment of certain estimated costs that the County anticipated that it would incur in providing the requested materials. These costs were based on the County‘s interpretation of those FOIL provisions which authorize it to recoup specified costs, including employee time, in the form of fees charged to the requesting party.
As an initial matter, the Appeals Officer‘s determination upholding the County‘s imposition of certain fees evinces a misapprehension as to the appropriate burden of proof. His deter-
However, “the burden of proof rests solely with the [agency] to justify the denial of access to the requested records” (Matter of Data Tree, LLC v Romaine, 9 NY3d at 463; see Matter of Markowitz v Serio, 11 NY3d 43, 50 [2008]). This burden must be met “in more than just a plausible fashion” (Matter of Data Tree, LLC v Romaine, 9 NY3d at 462 [internal quotation marks omitted]; see Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Matter of Konigsberg v Coughlin, 68 NY2d 245, 249 [1986]). Where, as here, an agency conditions disclosure upon the prepayment of costs or refuses to disclose records except upon prepayment of costs, it has the burden of “articulating a particularized and specific justification” for the imposition of those fees (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986]; cf. Matter of Data Tree, LLC v Romaine, 9 NY3d at 462-463; Matter of Verizon N.Y., Inc. v Mills, 60 AD3d 958, 959 [2009]). Specifically, the agency must demonstrate that the fees to be imposed are authorized by the cost provisions оf FOIL (see
In this case, the only evidence in the record justifying the imposition of costs was the email correspondence from the Access Officer sent in response to the petitioner‘s requests. Many of the fees outlined in those emails appear to be based on costs which may properly be recouped by the County pursuant to the cost provisions of FOIL. For example, charging the petitioner 25¢ for each photocopy of a paper record which is not maintained in an electronic format is expressly authorized by FOIL (see
However, the Supreme Court nevertheless erred in summarily denying the petition since the Access Officer‘s emails were insufficient to satisfy the County‘s burden of demonstrating that each and every cost it sought to impose was authorized by the cost provisions of FOIL. The County attempted to justify certain
The Access Officer‘s emails indicate that some of this cost of “preparation” of records included costs associated with locating physical copies оf certificates and other paper documents within archives or other filing systems. In advisory opinions issued after the 2008 Amendments, the Committee on Open Government expressed the view that, although “an agency may charge for employee time spent extracting or segregating data from an electronic database” (Comm on Open Govt FOIL-AO-17423 [2008]), FOIL does not permit an agency to charge for employee time spent sеarching for paper documents (see Comm on Open Govt FOIL-AO-18127 [2010]). Although the advisory opinions issued by the Committee on Open Government are not binding on the courts (see Matter of Seltzer v New York State Democratic Comm., 293 AD2d 172, 175 [2002]), “[a]n agency‘s interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational” (Matter of Rodriguez v Perales, 86 NY2d 361, 367 [1995]; see Matter of Carver v State of New York, 87 AD3d 25, 33 [2011]; Seenaraine v Securitas Sec. Servs. USA, Inc., 37 AD3d 700, 701-702 [2007]). The conclusion of the Committee on Open Government that FOIL does not permit an agency to charge for employee time spent searching for paper documents is not unreasonable or irrational, given the provision of the statute which provides that “preparing a copy shall not include search time or administrative costs” (
The Access Officer‘s emails indicate that the petitioner may have been improperly charged for the time it would take county employees to search for paper documents, as those emails make rеference to time spent retrieving “32,400 pages that would need to be located in the Archives,” the retrieval of “files [that] would have to be located,” “a manual search of numerous files
The Access Officer‘s emails also indicate that some of the fees the County sought to impose for the “preparation” of documents may have been related to costs incurred in the course of creating entirely new records, or may have been imposed to compensate the County for extraordinary efforts nеeded to retrieve or extract records or data. For instance, the Access Officer‘s emails make reference to at least one document that would “need to be created” and to the necessity of “creat[ing] a new enterprise.” As previously noted, FOIL does not “require any entity to prepare any record not possessed or maintained by such entity” (
In sum, we conclude that the Supreme Court erred in summarily denying the petition, inasmuch as there are triable issues of fact as to whether the petitioner requested data or records that could be retrieved or extracted with reasonable effort, whether his requests required the creation of new records, and whether and to what extent the County sought to impose fees associated with the time its employees would spend searching for paper documents (see
The petitioner‘s remaining contentions are without merit.
Skelos, J.P., Dickerson, Hall and Miller, JJ., concur.