Page 30 - WCBA Appellate Practice Committee CLE May 2024-Handout

performed yielded results too numerous to feasibly review. The Deputy Clerk averred that she
conducted one keyword search of the emails of members of the Village Boards during a five year period
and the results were in excess of 52,000. The Supreme Court denied the petition and dismissed the
proceeding on the ground, inter alia, that the petitioner failed to reasonably describe the documents so
that they could be located. The petitioner appealed. When an agency is unable to locate documents
properly requested under FOIL, Public Officers Law § 89(3) requires the agency to clarify that it does not
have possession of the requested record or that such record cannot be found after a diligent search.
Here, this Court found that the Clerk-Treasurer’s vague affidavit utilizing imprecise terminology was
insufficient to qualify as a proper certification of unavailability of any particular type of record. Thus, this
Court held that the Supreme Court erred in determining that many of the items requested by the
petitioner were not maintained as records. This Court noted that proper certification that the Village
was not in possession of the records included precise identification of the records that were the subject
of the certification. This Court further found that the Supreme Court erred in determining, as a matter of
law, that the petitioner had failed to reasonably describe the records sought. In order for an agency to
deny a FOIL request for overbreadth, the agency must demonstrate that the description is insufficient
for the purposes of locating and identifying the documents sought. In determining whether a FOIL
request has reasonably described the records sought, consideration can be given to an agency’s filing,
indexing or record retrieval mechanisms. Thus, under certain circumstances, an agency may have a valid
basis for denying a FOIL request for paper records when such records are not indexed in a manner that
would enable identification and location of documents. However, the manner in which records are filed
or indexed may not prevent an agency from locating and identifying records stored electronically. In the
case of electronic files, the agency must show that the descriptions provided are insufficient for
purposes of extracting or retrieving the requested documents through an electronic word search or
other reasonable technological effort. Here, the petitioner requested records related to recusals,
requests for recusals, and disclosures made under specific provisions of the Village Code. The petitioner
also specified that the records should pertain to members of certain Village boards for a period of five
years. This Court found that such requests were not vague or unlimited as the subject matter, time
period, and to whom the records pertained to were detailed by the petitioner. As to the Village’s
keyword search of emails performed by the Deputy Clerk, this Court found that the search was
unreasonable and not well designed as it included too-common terms. Since it did not perform a
reasonable search, the Village failed to establish that the descriptions provided by the petitioner were
insufficient for purposes of extracting or retrieving the requested documents through an electronic
word search. This Court rejected the respondents’ argument that the FOIL request would unreasonably
burden the Village and noted that the Court of Appeals has held that an agency cannot evade the broad
disclosure provisions of FOIL upon a bare allegation that the request would require the review of
thousands of records. If necessary, a municipality can recover the costs of engaging an outside service
from the person making such a request and can condition disclosure upon prepayment of such costs.
Additionally, regulations enacted under FOIL provide that, upon receipt of a FOIL request, agency
personnel are required to assist the individual seeking records to identify the records sought and, when
appropriate, indicate the manner in which the records are filed, retrieved or generated to assist the
individual in reasonably describing records. Agency personnel are also required to contact the individual
seeking records when a request is voluminous or when it involves substantial effort so that the records
of primary interest are identified and the volume of records requested can be reasonably reduced. Here,
this Court found that there was no evidence that the Village made any effort to assist the petitioner with

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