Data Tree, LLC v. Romaine, 9 N.Y.3d 458 (2007)

An agency must provide access to electronic records under Freedom of Information Law (FOIL) if those records are maintained electronically and retrievable with reasonable effort, but is not required to create new records or undertake burdensome programming to comply with a request.

Summary

Data Tree, a commercial provider of online land records, requested electronic copies of Suffolk County land records from the County Clerk via FOIL. The Clerk denied the request, citing privacy concerns and the need to create a new record. The Court of Appeals reversed the lower court’s denial of disclosure, holding that the Clerk bears the burden of proving a specific FOIL exemption applies and that Data Tree’s commercial purpose is irrelevant. The Court remanded the case to determine if the privacy exemption applies and whether the Clerk could provide the records in the requested electronic format without creating a new record or undertaking significant burden.

Facts

Data Tree, a company providing online public land records, requested copies of Suffolk County land records from January 1, 1983, to the present. The request specified TIFF images or other electronic formats regularly maintained by the County on CD-ROM or similar media. The County Clerk failed to respond within the statutory timeframe, effectively denying the request.

Procedural History

Data Tree filed an Article 78 proceeding after the County Attorney affirmed the denial based on rewriting requirements, privacy concerns, and availability of records at the Clerk’s Office. The Supreme Court denied Data Tree’s request, limiting access to in-person copying or downloading from the internet. The Appellate Division affirmed, citing the privacy exemption and the burden on the Clerk. The Court of Appeals granted Data Tree leave to appeal.

Issue(s)

1. Whether the Suffolk County Clerk is required by FOIL to provide the requested land records to Data Tree, LLC?
2. If so, whether the records must be provided in the specific electronic format requested by Data Tree?

Holding

1. No, not necessarily because questions of fact exist as to whether compliance with such request would require the Clerk to disclose information excluded under the privacy exemption of FOIL.
2. No, not necessarily because questions of fact exist as to whether the Clerk has the ability to comply with the request in the format sought by Data Tree.

Court’s Reasoning

The Court emphasized FOIL’s presumption of access to government records, placing the burden on the agency to justify any denial. It stated that the Clerk’s assertion of the privacy exemption must be supported by a “particularized and specific justification.” Data Tree’s commercial motive was deemed irrelevant. Citing Public Officers Law § 89 (2) (b) (iii), the court clarified that while motive can be relevant regarding the release of names and addresses for commercial purposes, that exemption did not apply here because Data Tree was seeking public land records for commercial reproduction, not names and addresses for solicitation. A question of fact existed as to whether the requested documents contained private information that could be redacted.

The Court also addressed the requirement for agencies to create new records. While agencies aren’t required to create new records, FOIL doesn’t differentiate between paper and electronic records. If records are maintained electronically and retrievable with reasonable effort, disclosure is required. However, Public Officers Law § 89 (3) (a) states that “Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity.” The Court remanded to determine if providing the records in the requested format would require creating a new record, highlighting conflicting affidavits on the Clerk’s capabilities. The Court also noted that an agency doesn’t need to provide preferential treatment to commercial entities, and the time needed to comply with a request may depend on the request’s volume and retrieval methods.