Anyone who makes requests for government records under New York's Freedom of Information Law (FOIL), New York Public Officer's Law Sections 84-89, knows that a very common response of government agencies is that they cannot comply with the request because finding the records would be unduly burdensome, like being asked to find a "needle in a haystack." For years, agencies have argued that where it would be unduly burdensome to comply with requests for records, that exempted them from producing them on the grounds that records that are hard to produce are not deemed to be "reasonably described," which FOIL requires.

Yet in a recent decision, In re Application of Jewish Press, Inc. v. New York City Department of Education, the Appellate Division of the Supreme Court, Second Department, made a landmark ruling that directly held that as a matter of law, the requirement that records be reasonably described has nothing to do with how burdensome it is to produce such records, and that agencies cannot use the "unduly burdensome" claim to exempt them from having to comply with requests that are "reasonably described."

The case involved a FOIL request submitted by the Jewish Press to the New York City Department of Education (DOE) for requests of DOE employees. DOE denied the request, stating that the request was not "reasonably described" as required by FOIL and court decisions defining that term, because even though the records requested were specific and existed, collecting such records would be "overly burdensome" on DOE.

DOE claimed that to even determine whether the requested documents existed, DOE would have had to manually look through more than 100,000 hard-copy personnel files dispersed among 1,700 different schools, and argued that as a matter of law is was well settled that FOIL permits an agency to deny a records request when it is not "reasonably described"—meaning that the description, either by its own terms or because of the nature of the documents it requests, forces the agency to engage in unduly burdensome efforts to locate the documents.

The Supreme Court, Kings County, agreed with DOE, ruling that because the requested documents were kept in individual employee personnel files, and because those records are voluminous and not organized by the DOE in an easily searchable manner, the request, as phrased, would require DOE to look through their personnel files of all its employees, an unnecessarily burdensome task.

The court also stated that FOIL does not require an agency to create indexing systems that are not already in use in order to retrieve the information sought. As the decision stated, courts have found plausible claims of "nonidentifiability" where an agency's indexing system was such that "the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency…. Here, DOE explained the Form 201s are kept in each employee's personnel file which are located at the current or former employee's last assigned school. Although DOE also keeps a central personnel file for each employee, Form 201s are not included in that file. DOE estimates there are approximately 100,000 personnel files relevant to the given period that are located in approximately 1,700 schools throughout New York City. These files are paper, not electronic, and DOE does not organize the filing of the Form 201s based on the reason for the request or basis of the denial. The request, as phrased, would require DOE to look through the personnel files of all its employees in all of its schools to determine whether a Form 201 was submitted during the relevant time period. The law does not mandate that the agency undertake a search of all its records as required here to access the information sought by a FOIL request. Further, the law does not require an agency to create indexing systems that are not already in use in order to retrieve the information sought… Accordingly, the court finds DOE has demonstrated petitioner's request, as phrased, was insufficient for DOE to locate and identify the documents sought with a reasonable amount of effort." In re Application of Jewish Press, Inc. v. New York City Department of Education, 2019 WL 1170869, 2019 N.Y. Slip Op. 30653 (Supreme Court, Kings County, 2019).

In other words, the burdensome nature of complying with the records request, plus the claim that because the files were not kept in a way that would enable DOE to easily access them under their current method of storing the documents, meant that the records were not "reasonably described" and thus exempted DOE from having to comply with the request.

The plaintiff appealed the decision to the Appellate Division, arguing that the DOE had conflated the requirement that a FOIL request reasonably describe the records sought with the issue of whether it would be unduly burdensome on the agency to produce the records. With regard to the first issue, the case law is clear that FOIL requires that a FOIL request reasonably describe the records sought is to enable the agency to locate the records in question. See Matter of Konigsberg v. Coughlin, 68NY2d 245, 249; Matter of M. Farbman & Sons, Inc. v. New York City Health & Hosps. Corp., 62NY2d 75, 83.

In order for an agency to deny a FOIL request, the agency must demonstrate that the description is "'insufficient for the purposes of locating and identifying the documents sought'" (Matter of Konigsberg v. Coughlin, 68 NY2d at 249, quoting Matter of M.Farbman & Sons, Inc. v. New York City Health & Hosps. Corp., 62 NY2d at 83). The plaintiff maintained that its request for records complied with the requirement that it "reasonably describe" the records sought, in this case, specific forms submitted by DOE employees for time off and accommodation for religious observance.

However, plaintiff maintained that, contrary to the DOE's position and to the Supreme Court's ruling, there is no exception or exemption under FOIL for complying with requests for records on the grounds that complying with the request would be unduly burdensome on the agency. To the contrary, the plaintiff argued that it is well settled that a request pursuant to FOIL cannot be rejected merely because of its breadth of burdensomeness. In Konigsberg v. Coughlin, 68 N.Y.2d 245 (1986), the lower court denied the petition for records pursuant to FOIL because the records sought were voluminous.

The Court of Appeals rejected that argument because it held that the test was whether the documents were reasonably described, and not whether or not the documents requested were voluminous. The court also quoted Sears v. Gottschalk (502 F.2d 122) in a footnote that "[if] otherwise locatable…equitable considerations of the costs, in time and money of making records available for examination do not supply an excuse for non-production." See also Farbman v. NYC Health and Hosps., 62 N.Y.2d 75 (1984) (where the court held that petitioner was entitled to documentation requested because the respondents have not established that the descriptions were insufficient for purposes of locating and identifying the documents sought).

In its brief, the DOE argued that the FOIL requirement that records be "reasonably described" exempted agencies from unduly burdensome searches for records. The brief stated that the Supreme Court correctly denied petitioner's claim that the DOE violated FOIL when it declined to engage in the "needle-in-a-haystack" search that petitioner's request would have required. "It is well settled," said the DOE brief, "that FOIL permits an agency to deny a records request when it is not "reasonably described"—meaning that the description, either by its own terms or because of the nature of the documents it requests, forces the agency to engage in "Herculean" efforts to locate the documents."

DOE maintained that the petitioner's request fell within the heartland of an unreasonably described request. To even determine whether the requested documents existed, DOE would have had to manually look through more than 100,000 hard-copy personnel files dispersed among 1,700 different schools.

FOIL does not require such an effort. DOE's brief maintained that both the Court of Appeals and the Appellate Division have held that "an agency may deny a request as not "reasonably described" under POL § 89(3)(a) when the nature of the request, either on its own terms or because of the way in which the relevant documents are stored, would require the agency to engage in an unreasonable effort to locate responsive documents. Konigsberg v. Coughlin, 68 N.Y.2d 245, 249 (1986); Matter of Brown v. DiFiore, 139 A.D.3d 1048, 1050 (2d Dep't 2016). The DOE brief also cited the State of New York's Committee on Open Government position that has stated that FOIL's "reasonably described" requirement means that "agency officials are not required to search through the haystack for a needle, even if they know or surmise that the needle may be there," meaning that a request for records is not "reasonably described" if the search would be unduly burdensome on an agency.

The Second Department, in its landmark ruling, disagreed emphatically with the Supreme Court's decision and DOE's position, stating "We disagree with the Supreme Court's determination that it was proper for the respondent to deny the petitioner's request on the ground that the requested records were not reasonably described." The court held that the records sought were reasonably described, and that DOE conceded that it could locate the requested records. The court stated that the DOE had "conflated the requirement of reasonable description with the related, but separate, consideration as to whether it would be unduly burdensome for the respondent to comply with the petitioner's request." In Matter of Jewish Press v. New York City Department of Education, 2020 WL 2462318 (Supreme Court, Appellate Division, Second Department, 2020).

This is a landmark ruling that should have profound ramifications for all FOIL cases in which the agency henceforth argues that it is exempt from producing records on the grounds that they are not "reasonably described" because searching for them would be unduly burdensome. The Second Department has said that this is simply not the law, that "reasonably described" and unduly burdensome are two separate issues and that there is no exemption from FOIL for a "burdensome" search for records as long as the records are "reasonably described."

Furthermore, the Second Department's decision should be binding upon all departments of the Appellate Division, as stated in Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664 (Supreme Court, Appellate Division, Second Department, 1984), "[t]he Appellate Division is a single State-wide court divided into departments for administrative convenience…and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule… This is a general principle of appellate procedure…necessary to maintain uniformity…and, consequently, any cases holding to the contrary… are disapproved."

The Second Department also stated that as a general rule, burden is not an excuse that justifies an agency's denial of a FOIL request. As the Court stated, "Public Officers Law §89(3)(a) provides that the "agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover pursuant to paragraph (c) of subdivision one of section eighty-seven of this article."

The court went on to say that in this particular case, "[t[he issue of burden and/or whether the respondent is able to engage an outside professional service to cull the records sought was not addressed by the Supreme Court and we cannot resolve it on this record. Among other things, it is unclear as to how much time would be involved for an employee at each school to review the relevant files. Further, although the petitioner has expressed its willingness to reimburse the respondent for reasonable costs involved in having the respondent's employees, or an appropriate third party, review and copy the respondent's records, there is no information in the record as to what that cost would be or whether the petitioner would in fact be willing to reimburse the respondent for the full amount of those costs, once those costs are determined." Id.

In other words, burden is never an excuse if the agency can engage outside staffing to obtain the requested records, and can recover costs of doing so. The court thus remitted the case to the Supreme Court to make a determination on the above issues.

It is important that attorneys involved in handling FOIL cases know and understand the law as stated by the Second Department in the Jewish Press case. It means that government agencies can no longer deny FOIL requests that require extensive searching for records on the grounds that the burden means that the request falls under the exemption for records that are not "reasonably described."

It also means that FOIL requests that previously were not approved because the agency did not keep the records requested in a certain way, such as a way that would make them easily accessible through the agency's existing indexing system, could possibly now be able to be obtained, unless the agency can convince the court that producing the records would indeed be too burdensome a task. For example, in the past, agencies have denied requests for information about discrimination against a particular religious group, on the grounds that they do not keep records indexed or referenced by the employee's specific religion. Under the Second Department's decision, that may, depending on the records involved and the way in which they are maintained, not always be a valid excuse or reason for exemption, and agencies may have to produce such records. This will be of major help to individuals and the media in pursuing FOIL requests.

Joey Aron is the founding attorney of Aron Law, PLLC, a boutique law firm in Brooklyn, where he focuses on FOIL litigation and matters pertaining to religious discrimination. He represented the appellants in "In re Application of Jewish Press, Inc. v. New York City Department of Education," discussed in this article.