The opinion of the court was delivered by: Richard M. Platkin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Petitioners The Hearst Corporation and J. Robert Port bring this proceeding pursuant to CPLR article 78, challenging the State Comptroller's denial of a Freedom of Information Law ("FOIL") request for certain records pertaining to the New York State public employee payroll. Respondents, the State Comptroller, the Office of State Comptroller ("OSC") and the State of New York, oppose the petition through an answer. Petitioners also move for an order striking a supplemental affidavit filed by respondents or, in the alternative, granting them leave to respond. Finally, the New York State Public Employees Federation, AFL-CIO ("PEF") moves for permission to appear as amicus curiae in this proceeding.
Petitioner The Hearst Corporation ("Hearst") is the publisher of the Albany Times Union, a daily newspaper covering Albany and the greater Capital Region. Petitioner J. Robert Port is an investigative journalist employed by the Times Union.
In connection with his reporting duties, Mr. Port filed a FOIL request on January 21, 2008 with the Office of the State Comptroller seeking the following information regarding the New York State public employee payroll:
. . . I hereby request an electronic copy of the following NY State payroll tables: Addl Pay, Compensation, Department, Job, Job Approvals, Job Code, Location, NY Time Detail, Pay Earnings, Pay Other Earnings, Paycheck, Personal Data, Position, and Retirement. Please include related metadata, record layouts, and documentation.
I am seeking these records in a data file or grouping of related data files, in any commonly-used digital database of spreadsheet format or as ASCII text delimited files . . .
Following informal telephone and email communications between the parties, the Records Access Officer for OSC, Shelly Brown, partially denied petitioners' FOIL request by letter dated March 19, 2008. OSC provided petitioners with the names, public office addresses, titles and salaries for all State employees, but refused to disclose the other requested information. The denial primarily was based on the Record Access Officer's assertion that OSC would be required to engage in substantial computer reprogramming to respond to petitioners' request:
. . . [A]lthough the information you have requested is contained within [OSC's] PayServ database, such information cannot be retrieved without extensive and time-consuming data extraction, record creation, and/or computer reprogramming by our staff. Moreover, for these records, it is not possible to link the information in one record to the appropriate data in another record without including the employees' Social Security Numbers.
In addition, the denial letter maintained that the release of the birth dates of State employees would constitute an unwarranted invasion of personal privacy and could facilitate identity theft. Finally, the portion of petitioners' FOIL request seeking the metadata, record layouts and documentation was denied on the basis of two additional FOIL exemptions: (1) the information sought by petitioners constitutes trade secrets or proprietary material, the release of which would injure a company's competitive position in the marketplace; and (2) the release of such information could compromise OSC's ability to protect the security of its information technology assets.
On April 17, 2008, petitioners filed an administrative appeal of the agency's FOIL denial. In their appeal letter, petitioners described several alternative methods by which the requested data could be produced in usable form without the disclosure of social security numbers. Petitioners also objected to the other grounds for denial asserted by OSC.
By letter dated May 7, 2008, the agency's FOIL Appeals Officer, Albert W. Brooks, affirmed the denial of access to the requested records for substantially the same reasons put forward by the Records Access Officer. Further, in his letter, Mr. Brooks offered a detailed explanation as to why petitioners' various options for addressing the social security number issue did not overcome the agency's objections.
Petitioners then commenced this proceeding pursuant to CPLR article 78. On February 23, 2009, this matter was reassigned to the undersigned. Oral argument was held on April 3, 2009.*fn1 This Decision, Order & Judgment follows.
A.Creation of New Records
1. Applicable Legal Standard
Pursuant to FOIL, all "records" of a government agency are presumptively available to the public unless the requested records fall within one of the exemptions set forth in the FOIL statute (Public Officers Law ["POL"] § 87 ; Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of NY at Farmingdale, 87 NY2d 410, 417 ). At the same time, nothing in FOIL "shall be construed to require any entity to prepare any record not possessed or maintained by such entity except the records specified in subdivision three of section eighty-seven . . ." (POL § 89 ).*fn2
In its recent decision in Matter of Data Tree, LLC v. Romaine (9 NY3d 454 ), the Court of Appeals addressed the obligation of a government agency to provide the public with access to information that its possesses in electronic form. In Data Tree, a commercial enterprise requested that the Suffolk County Clerk provide it with certain real property records in electronic form. The Clerk denied the request, contending, among other things, that "the FOIL request would require rewriting and reformatting of the data, which the Clerk's Office is not required to do" (id. at 460).
In addressing this contention, the Court of Appeals explained that "FOIL does not differentiate between records stored in paper form or those stored in electronic format" and that "[d]isclosure of records is not always necessarily made by the printing out of information on paper, but may require duplicating data to another storage medium, such as a compact disc" (id. at 464). The Court went on to hold as follows:
[I]f the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information. In such a situation, the agency is merely retrieving the electronic data that it has already compiled and copying it onto another electronic medium. On the other hand, if the agency does not maintain the records in a transferable electronic format, then the agency should not be required to create a new document to make its records transferable. A simple manipulation of the computer necessary to transfer existing records should not, if it does not involve significant time or expense, be treated as creation of a new document.(id. at 464-465).
In support of its claim of exemption, the Clerk's Office relied upon the affidavit of its information technology director, who averred that a new computer program would have to be written to permit the requested information to be extracted and produced in electronic form (id. at 465). In response, Data Tree's own software engineer averred that the requested records could be produced without any computer programming (id.). Data Tree also noted that its FOIL request merely asked that the records be produced in an "electronic format regularly maintained by the County" (id. at 465-466). Under these circumstances, the Court of Appeals found that "questions of fact exist as to whether disclosure may be accomplished by merely retrieving information already maintained electronically by the Clerk's Office or whether complying with Data Tree's request would require creating a new record" (id.).
Following the Data Tree decision, the State Legislature amended FOIL in relation to, inter alia, electronic records (see L 2008, ch 223 § 6). As a result, POL § 89 (3) was amended to include the following language applicable to requests for data stored in electronic form:
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 pursuant to paragraph (c) of subdivision one of section eighty-seven of this article. . . .
When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so. When doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the agency shall be required to retrieve or extract such record or data electronically. Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested by a person or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.
Chapter 223 was signed into law by the Governor on July 7, 2008 and took "effect on the thirtieth day after it shall have become a law" (id. § 8).
As a threshold matter, the Court concludes that the 2008 amendments to POL § 89 (3) are not applicable to this application. The agency's denial of petitioners' FOIL request became final on May 7, 2008, the date on which the FOIL Appeals Officer denied access to the requested records. The new legislation took effect, at the very latest, on August 6, 2008, thirty days after Chapter 223 became law.*fn3 Thus, the new law was not in effect when OSC rendered the challenged administrative determination.
Further, there is nothing in the text of Chapter 223 that evinces an intent on the part of the Legislature to have the new FOIL provisions apply retroactively to final agency determinations rendered prior to its effective date (see Matter of New York State Rifle & Pistol Assn., Inc. v. Kelly, 55 AD3d 222 [1st Dept 2008] ["This requirement was not in effect when petitioner made the request at issue here."]). Indeed, when the State Legislature has intended to make amendments to FOIL applicable to cases pending before the courts, it has said so expressly (see e.g. Matter of New York Veteran Police Ass'n v. New York City Police Dep't Article I Pension Fund, 61 NY2d 659 ). Moreover, since the new legislation was not the basis for the determinations challenged in this CPLR article 78 proceeding, application of Chapter 223 to the facts of this case would inappropriately require the Court to consider issues and arguments that were not raised before the administrative agency in the first instance (see Matter of Molloy v. New York City Police Dept, 50 AD3d 98 [1st Dept 2008]).
Thus, this application is controlled by the standard set forth in the Data Tree decision. Insofar as petitioners wish to avail themselves of whatever benefits the 2008 legislation may ...