FOIL: E-mail as a Reasonably Described Record

The public has the right to know and be able to make requests for which local government must respond. Freedom of Information Law ([FOIL] Public Officers Law art 6) requires an agency within five business days of receiving a FOIL request, an agency must inform the requester if it believes the request does not reasonably describe the records sought, and provide “direction, to the extent possible, that would enable that person to request records reasonably described.” 21 NYCRR § 1401.5(c)(1). Under Public Officers Law § 89(3)(a), within five business days of receiving a request, an agency “shall” do one of three things:

1. “make such record available to the person requesting it”;

2. “deny such request in writing”; or

3. “furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.”

Public Officers Law § 89(3)(a) (external quotation marks omitted). This does not mean that the Records Access Officer, or the person responding to the FOIL request, can simply ignore the request because it does not "reasonably describe" records, as the Records Access Officer has duties defined by 21 NYCRR § 1401.2 to:

“(2) Assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records;

(3) Contact persons seeking records when a request is voluminous or when locating the records sought involves substantial effort, so that agency personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of the records requested.”

21 NYCRR § 1401.2(b)(2), (3). The ignorance of a request because it is allegedly not reasonably described, or in some cases where the agency states this and fails to even identify a Records Access Officer, is not an excuse when litigation is commenced.

As the Court In the Matter of Kim A. Kirsch Et Al., Respondents, v. Board Of Education Of Williamsville Central School District et al., Appellants. 152 A.D.3d 1218 (4th Dep't. 2017) stated:

Here, petitioners "reasonably described" the requested emails to enable respondents to identify and produce the records (Public Officers Law § 89 [3] [a]), and respondents "cannot evade the broad disclosure provisions of [the] statute ... upon the naked allegation that the request will require review of thousands of records" 1220*1220 (Matter of Konigsberg v Coughlin, 68 NY2d 245, 249 [1986]; see Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, 318 [2010]). In addition, respondents' "broad allegation here that the [emails may] contain[] exempt material is insufficient to overcome the presumption that the records are open for inspection ... and categorically to deny petitioner[s] all access to the requested material" (Konigsberg, 68 NY2d at 251). In the event that respondents are able to establish that a requested email contains exempt material, "the appropriate remedy is an in camera review and `disclosure of all nonexempt, appropriately redacted material'" (Matter of Pflaum v Grattan, 116 AD3d 1103, 1105 [2014], quoting Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996]).

Freedom of Information Law ([FOIL] Public Officers Law art 6) demands compliance of agencies for the sake of Free and Open Government. Here, it appears that the Respondents, the Board of Education of Williamsville, threw every defense at the wall to see what sticks but the case is important (not just for issues of standing) because it states that the Respondents cannot simply deny access on this broad technicality: reasonably described.

Not only does the failure to provide information hurt the citizenry for which the government is to account, it costs time, money and attorney's fees

The case is In the Matter of Kim A. Kirsch Et Al., Respondents, v. Board Of Education Of Williamsville Central School District et al., Appellants. 152 A.D.3d 1218 (4th Dep't. 2017) and, similarly, the MATTER OF JEWISH PRESS, INC. v. New York City Dept. of Educ., 183 A.D.3d 731, 122 N.Y.S.3d 679 (2d Dep't. 2020) has a similar holding from downstate, the Second Judicial Department.

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for a flat-fee price quote. We work on a sliding scale, depending on the amount of the request and whether the request is in the public interest.