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Agency Has the Burden of Proving Exemption for FOIL Request

The New York Court of Appeals held that the Freedom of Information Law carries the presumption of access to records. In reversing the holding of the Appellate Division and remitting the matter for a factual determination, the Court held in Matter of Data Tree, LLC v. Romaine that the Suffolk County Clerk, which claimed the requested documents were exempt from disclosure, “carries the burden of demonstrating that the exemption applies to the FOIL request.”

Data Tree is in the business of providing property records electronically and had requested that the County Clerk supply copies of various public land records from 1983 to the present, in an electronic format. When the Clerk failed to respond within five days, Data Tree treated this as a de facto denial and made an administrative appeal. The County Attorney denied the appeal citing three grounds (1) the request would require rewriting data which the Clerk is not required to do, (2) there would be an unwarranted invasion of personal privacy due to the volume and commercial nature of the request and (3) the records are otherwise available for copying individually in the Clerk’s Office. The determination was upheld by the Supreme Court and the Appellate Division.

The Court held that unless a specific exemption applies the records must be made available. After noting that the exemptions must be “narrowly interpreted” the Court agreed that the Appellate Division had engaged in improper burden shifting. It found that the burden is on the Clerk to prove an exemption applies not upon the applicant to prove an exemption does not apply.

Finding that the exemption under Public Officers Law section 87 (2)(b)(iii) for sale of mailing lists used for commercial or fund raising purposes did not apply, the Court remitted the matter for findings of fact on the other issues. The Court noted that questions existed as to whether the privacy exemption might apply because some records may contain personal information. In addition, the Court held that “an agency has no obligation to accommodate a request to compile data in a preferable commercial electronic format when the agency does not maintain records in such a manner.” Conflicting affidavits raised the question of whether the current records could be transferred electronically. Yet, the Court also held that “simple manipulation of the computer necessary to transfer exiting records should not, if it does not involve significant time or expense, be treated as creation of a new document.”