FOIL LITIGATION

I have been receiving various questions on this issue. Only after all administrative remedies have been fully exhausted, may an Article 78 proceeding be entertained. And as noted by the 2nd Dept:

"FOIL requires that public agencies `make available for public inspection and copying all records' except where they fall within one of the statute's enumerated exemptions" (Matter of Kosmider v Whitney, 34 NY3d 48, 54 [2019], quoting Public Officers Law § 87[2]; see Matter of New York Times Co. v District Attorney of Kings County, 179 AD3d 115, 121 [2019]). Public Officers Law § 89(3)(a) provides, in pertinent part: "Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement 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.... An 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.... If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search" (emphasis added)."

MATTER OF LEPPER v. Village of Babylon, 190 AD 3d 738 - NY: Appellate Div., 2nd Dept. 2021