Data Tree, LLC v. Romaine

• Decision Date: 18 December 2007
• Docket Number: 173.
• Citation: 849 N.Y.S.2d 489,880 N.E.2d 10,9 N.Y.3d 454
• Parties: In the Matter of DATA TREE, LLC, Appellant, v. Edward P. ROMAINE, as Suffolk County Clerk, Respondent.
• Court: New York Court of Appeals Court of Appeals

880 N.E.2d 10

9 N.Y.3d 454

849 N.Y.S.2d 489

In the Matter of DATA TREE, LLC, Appellant, v. Edward P. ROMAINE, as Suffolk County Clerk, Respondent.

173.

Court of Appeals of New York.

December 18, 2007.

DLA Piper U.S. LLP, New York City (Andrew L. Deutsch of counsel), for appellant.

Christine Malafi, County Attorney, Hauppauge (Christopher A. Jeffreys of counsel), for respondent.

Cowan, Liebowitz & Latman, P.C., New York City (Robert W. Clarida of counsel), and Meyer, Klipper & Mohr, PLLC, Washington, D.C. (Michael R. Klipper, Christopher A. Mohr and David Ludwig of counsel), for American Business Media and others, amici curiae.

Levine Sullivan Koch & Schulz, L.L.B., New York City (David A. Schulz of counsel), for Advance Publications, Inc. and others, amici curiae.

Michael A. Cardozo, Corporation Counsel, New York City (Kristin M. Helmers and Alan G. Krams of counsel), for City of New York, amicus curiae.

[849 N.Y.S.2d 459]

OPINION OF THE COURT

PIGOTT, J.

The issue presented on this appeal is whether the Suffolk County Clerk is required by the Freedom of Information Law (FOIL) to provide certain land records requested by Data Tree, LLC, a commercial provider of on-line public land records, and if so, whether the records must be provided in the electronic format specified by Data Tree. We hold that 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 and whether the Clerk has the ability to

[849 N.Y.S.2d 460]

comply with the request in the format sought by Data Tree. Therefore, we reverse the Appellate Division order denying disclosure and remit the matter to Supreme Court for those determinations.

I.

Data Tree is a national company that provides on-line public land records such as deeds, mortgages, liens, judgments, releases and maps, and maintains a database of nearly two billion documents, providing its customers with immediate electronic access to the information. Its customers are those entities who purchase, sell, finance and insure property. Data Tree obtains the public land records by requesting them from county clerks, or other public officials who have the responsibility of recording and archiving such documents, throughout the country.

In January 2004, Data Tree, pursuant to FOIL, wrote to the Records Access Officer of the Suffolk County Clerk's Office requesting copies of various public land records from January 1, 1983 to the present. It asked the Clerk to provide these records in "Tiff images or images in the electronic format regularly maintained by the County . . . on CD-ROM or other electronic storage medium regularly used by the County . . . If electronic images are not maintained, then [in] microfilm [format]."

The Clerk failed to respond to the request within the five-day period required by Public Officers Law § 89(3), thereby constructively denying the request. Upon Data Tree's administrative appeal, the Suffolk County Attorney also denied the request, identifying three reasons: (1) the FOIL request would require rewriting and reformatting of the data, which the Clerk's Office is not required to do; (2) disclosure would constitute an unwarranted invasion of personal privacy due to the volume of the records requested and the commercial nature of Data Tree's business; and (3) the records are available for copying and/or downloading from the computer terminals at the Clerk's Office.

Data Tree then brought the instant CPLR article 78 proceeding seeking a judgment directing the Clerk to provide the records sought along with costs and attorneys' fees.

Supreme Court held that "[t]he Clerk's Office has rightly denied petitioner's request" (2005 WL 5970817, 2005 N.Y. Slip Op 30134[U], *3). It noted that many of the requested documents are available either by computer or in paper form at the Clerk's Office or on its Web site. Additionally, the court adopted the argument of the

[849 N.Y.S.2d 461]

Clerk that the bulk of the remaining documents could not be transferred to the requested form (TIFF) or any other electronic medium without creating a new record. It noted that the Clerk's Office was not required to create a new record where none existed, "particularly when that would be at considerable expense to the taxpayers" (id. *4). Finally, the court granted Data Tree's application "for access . . . to the extent the documents are maintained and available in the Clerk's Office, or on the internet" (id.). In essence, the court limited the relief sought by Data Tree to allowing it to attend the Clerk's Office during regular business hours and make individual copies of the public documents and/or download the documents available on the Internet at Data Tree's expense.

The Appellate Division affirmed, holding first that the Clerk's Office established an exemption to FOIL, namely, that disclosure of the documents sought would entail an unwarranted invasion of personal privacy (36 A.D.3d 804, 828 N.Y.S.2d 512 [2d Dept.2007]). The Appellate Division stated that the burden was on the Clerk to prove this exemption and that the Clerk here demonstrated "in a plausible fashion" that the exemption applied (id. at 805, 828 N.Y.S.2d 512). The court then shifted the burden to Data Tree to establish that the claim of exemption was erroneous or that the Clerk acted in an arbitrary and capricious manner in attempting to invoke an exemption. The court held that Data Tree failed to meet that burden, stating:

"To the extent that the request was viewed by the Clerk as data mining, the Clerk determined that such request was clearly within the ambit of the enumerated exemptions to FOIL. In view of the rapid advances in technology, the misuse of that data for purposes unfathomable only a few short years ago is now possible. Whether such raw data (as opposed to the records actually maintained) should be available, and what constraints, if any, should be placed on that access, is a public policy better addressed by the appropriate legislative bodies" (id. at 805-806, 828 N.Y.S.2d at 513).

The Appellate Division noted that the right to access and copy such public records has not been construed to "require extraordinary efforts by the agency to provide the records in any manner requested and without regard to other statutorily mandated obligations to take prudent efforts to protect the guaranteed privacy interests of the citizens of the state" (id. at

[849 N.Y.S.2d 462]

806, 828 N.Y.S.2d at 513). Thus, it held that the Clerk's refusal was justified in this case both as to the burden imposed and the legitimate desire to protect the privacy of the citizens of Suffolk County. We granted Data Tree leave to appeal.

II.

FOIL provides the public with broad "access to the records of government" (Public Officers Law § 84). The term "record" is defined to include:

"[A]ny information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes" (Public Officers Law § 86[4] [emphasis supplied]).

An agency must "make available for public inspection and copying all records" unless it can claim a specific exemption to disclosure (see Public Officers Law § 87[2]; § 89[3]). However, the exemptions are to be narrowly interpreted so that the public is granted maximum access to the records of government (Matter of Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 513 N.Y.S.2d 367, 505 N.E.2d 932 [1987]).

In denying Data Tree's FOIL request, the Clerk relied in part on the privacy exemption, which authorizes each agency to deny access to records or portions of such records that, if disclosed, would constitute an "unwarranted invasion of personal privacy" (Public Officers Law § 87[2][b]). The law defines an "unwarranted invasion of personal privacy" with a nonexclusive list of examples (see Public Officers Law § 89[2][b][i]-[vi]).

Data Tree contends that the Appellate Division used an improper burden-shifting analysis to determine whether the privacy exemption applied in this case. We agree. FOIL is based on a presumption of access to the records, and an agency (in this case the Clerk) carries the burden of demonstrating that the exemption applies to the FOIL request (see Public Officers Law § 89[4][b]; Matter of Hanig v. State of N.Y Dept. of Motor Vehs., 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 [1992]). Contrary to the Appellate Division's view, the Clerk must meet this burden in more than just a "plausible fashion." In order to deny disclosure, the Clerk must show that the requested information "falls squarely within

[849 N.Y.S.2d 463]

a FOIL exemption by articulating a particularized and specific justification for denying access" (Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 [1986]; see Matter of M. Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 80, 476 N.Y.S.2d 69, 464 N.E.2d 437 [1984]; Matter of Fink v. Lefkowitz, 47 N.Y.2d 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463 [1979]). If the Clerk fails to prove that a statutory exemption applies, FOIL "compels disclosure, not concealment" (Matter of Westchester Rockland Newspapers v. Kimball, 50 N.Y.2d 575, 580, 430 N.Y.S.2d 574, 408 N.E.2d 904 [1980]). In short, the burden of proof rests solely with the Clerk to justify the denial of access to the requested records.

Similarly, it was error for the Appellate Division to conclude that as a matter of law the Clerk met its burden in establishing that the privacy exemption to FOIL applies in this case. Although the court failed to articulate the specific basis for its holding, it remarked that...