MTA Records and Exhausting Administrative FOIL Remedies

In obtaining access to public records, agency records under the Public Officers Law, there are minimal requirements before bringing suit under the Freedom of Information Law, one of them is exhausting administrative remedies.

An enormous resource for Personal Injury Lawyers or for ordinary citizens seeking to obtain records, the Public Officers Law, contains the New York Freedom of Information Law.

The Court notes that "This Freedom of Information Law ("FOIL") proceeding concerns three different FOIL requests filed by petitioner. He filed two on March 21, 2023 and another on April 20, 2023." After the FOIL Request for records, an appeal must follow if there is not compliance with the law, Public Officers Law Section 89(3)(a). In them, the court notes, the FOIL Requestor wanted "all disciplinary proceedings filed against me" and "all records regarding an incident I was disciplined for." Petitioner claims he waited a month and then appealed the constructive denial of only the first request (he claims he did not appeal the second request "to see if MTA would detect that both requests were from the same requester").

In other proceedings, lawyers and their clients can simply seek records under FOIL. In some cases, rather than conduct traditional discovery, attorneys and litigants can seek records under the New York Freedom of Information Law, FOIL, the Public Officers Law Sections 84 to 89. In this case, it looks like the FOIL request was for employment related records; the requestor (probably correctly so) stated that the FOIL remedies were nonexistent or futile...

One must exhaust one's administrative remedies, see Matter of Lepper v. Village of Babylon (2d Dep't, 2021) prior to seeking review in the courts. With FOIL, that review is an Article 78 proceeding, a special proceeding under the CPLR. To seek review of a denial under FOIL, one must file an administrative appeal. As the Court notes here,

...he explicitly admits that he never filed an appeal for either one. Therefore, the Court cannot reach the question whether or not there was a constructive denial of his FOIL requests such that an appeal would be futile. Put another way, petitioner's insistence that an appeal would have been futile is mere speculation given the failure to appeal. In fact, the Court observes that petitioner alleged in the verified petition that he chose not to appeal the second FOIL request as part of "a test" he sought to give respondent (NYSCEF Doc. No. 1, ¶ 14). That admission negates any claim of futility with respect to a possible administrative appeal.

The failure to comply with the law results in dismissal. One should know that an employment attorney or personal injury attorney seeking records under FOIL can later make an application for reasonable attorney's fees after the production of records, arguing that it substantially prevailed under the Public Officers Law. The investment of an attorney for someone pro se may be returned with an award of attorney's fees, thus reimbursement, from a Freedom of Infomation Law Attorney.

The case is Whitfield v. MTA FOIL TEAM & LEGAL DEPT., 2024 NY Slip Op 30768 (NYC Sup. Ct. 2024), the court denies sanctions, grants the motion of the (MTA) agency to dismiss and holds "the record shows that respondent and its attorney attempted to work with petitioner to disclose responsive records given the breadth of petitioner's requests."

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

Do you need legal services in obtaining information under the Public Officers Law, FOIL? Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for a flat-fee price quote.