New York Law Review

Tag: Privacy Exemption

  • Data Tree, LLC v. Romaine, 9 N.Y.3d 458 (2007): Clarifying FOIL Obligations for Electronic Records

    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.

  • Arms Access Info. v. New York City Police Dept., 79 N.Y.2d 102 (1992): Freedom of Information and Privacy Exemptions for Fundraising

    Arms Access Info. v. New York City Police Dept., 79 N.Y.2d 102 (1992)

    Under New York’s Freedom of Information Law (FOIL), an agency may deny a request for names and addresses if the list would be used for fundraising purposes, which includes soliciting membership dues to support an organization’s activities.

    Summary

    Arms Access Information sought the names and addresses of New York City rifle and shotgun permit holders from the New York City Police Department under FOIL, intending to solicit membership dues. The Police Department denied the request, arguing that releasing the information would be an unwarranted invasion of personal privacy because the organization intended to use the list for fundraising. The New York Court of Appeals held that soliciting membership dues to support an organization’s activities constitutes “fundraising” under FOIL, and thus the information could be withheld.

    Facts

    Arms Access Information, a pro-gun advocacy group, requested the names and addresses of individuals holding rifle or shotgun permits from the New York City Police Department. The group intended to use the information to solicit membership dues to support its activities, including lobbying and providing legal advice to members. The Police Department denied the request, citing the privacy exemption in Public Officers Law §§ 87(2)(b) and 89(2)(b)(iii), arguing that the release would be used for fundraising purposes.

    Procedural History

    Arms Access Information initiated a CPLR article 78 proceeding seeking to compel the Police Department to release the requested information. The Supreme Court initially granted the petition, then adhered to its original determination after reargument, despite finding the New York City Administrative Code inapplicable. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a request under the Freedom of Information Law (FOIL) for the names and addresses of persons holding rifle or shotgun permits may be denied as an unwarranted invasion of personal privacy because the requesting organization seeks the information to solicit membership dues to support its activities, which the Police Department argues constitutes “fund-raising” as the term is used in Public Officers Law § 89 (2) (b) (iii).

    Holding

    Yes, because soliciting membership dues to support the general activities of an organization and further its overall objectives constitutes “fund-raising” under FOIL, thus allowing the agency to deny the request to protect the privacy of permit holders.

    Court’s Reasoning

    The Court of Appeals acknowledged FOIL’s strong policy of public access to government records but emphasized that exemptions must be given their natural and obvious meaning. The court held that soliciting membership dues to support an organization’s activities constitutes “fund-raising” within the meaning of Public Officers Law § 87(2)(b)(iii). The court reasoned that the purpose of the solicitation, to obtain funds to support the organization, is what matters, regardless of the form the solicitation takes or the incidental benefits offered to those who pay dues. The court distinguished this case from those where the information request served a governmental purpose or where disclosure would inform the public about governmental activities. Here, the court found that no governmental purpose was served by disclosing the permit holders’ information. The court stated that the Legislature classified releasing names and addresses for fundraising efforts as an unwarranted invasion of privacy, and it was not the court’s role to weigh the degree of annoyance that would result from the solicitations. “It is enough that the Legislature has seen fit to classify the release of the names and addresses of individuals for use in such fund-raising efforts as an unwarranted invasion of their privacy.”