The Appellate Division affirmed the Supreme Court's determination that the Department of Education did not constructively deny petitioner's first FOIL request, pursuant to 21 NYCRR 1401.5[d]. Under FOIL, any person may request and receive documents kept by a government agency, unless they are statutorily exempted from disclosure, and the burden rests on the agency to demonstrate the applicability of an exception. Here, the record does not establish how the unspecified litigation records, as well as the hearing and 10-day numbers requested by petitioner, if redacted, would allow a person in the school community to identify students with reasonably certainty, citing Public Officers Law § 87[2][a], [b]; 34 CFR § 99.3. Accordingly, the Appellate Division remanded for an in camera review of the documents and numbers to evaluate whether the exceptions are applicable.
Matter of Cuddy Law Firm, P.L.L.C. v. New York City Dept. of Educ., NY Slip Op 01121 (1st Dep't February 18, 2021)
