County of Suffolk v Long Island Power Auth.
2012 NY Slip Op 30943(U)
April 3, 2012
Sup Ct, Suffolk County
Docket Number: 25774-11
Judge: Elizabeth H. Emerson
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[* 1]
INDEX
NO.: 25774-11
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
COMMERCIAL DIVISION
TRIAL TERM, PART 44 SUFFOLK COUNTY
PRESENT:
Honorable Elizabeth H. Emerson
MOTION DATE:
SUBMITTED:
MOnON NO.:
I
REILLY,
Attorneys
179 Little
P.O. Box
Babylon,
Petitioner,
-against-
LONG ISLAND POWER AUTHORITY,
RICHARD M. KESSEL, as Chairman orthe
Long Island Power Authority,
8-31-11
12-1-11
OOI-MD; CAS~ DISP
LIKE & TENETY
for Petitioner
East Neck Road North
818
New York 11702
RIVKIN RADLER LLP
Attorneys for Respondents
926 RXR Plaza
Uniondale, New York 11556
Respondents.
x
ORDERED that the amended petition for a judgment pursuant to CPLR article 78
directing the respondent Long Island Power Authority to provide access to, or copies of, certain
e-mails is denied, and the proceeding
is dismissed.
The petitioner, the County of Suffolk (the "County") is the plaintiff in a pending
action in this court against the respondents, the Long Island Power Authority ("LIP A") and its
former Chaimlan Richard Kessel (Index No. 24125-02). By an order dated June 3, 2010, this
court, inter alia, quashed subp~enas issued by the County in that ~ction to depose certain nonparty witnesses. Bya subsequent order dated December 22, 2010, this court denied the County's
motion for reargument and resettlement of the prior order. .Bya letter dated April 15, 2011, the
County made a request of LlPA, pursuant to the Freedom oflnformation Law ("FOIL"), to
provide it with e-rnails between and among Kessel and others, including sever.al LIPA officers
and employees, LIPA's accountants and auditors, the State Comptroller, and LIPA's financial
advisor, during the period from 1999 to 2003. The County's request sought e~mails on specific
topics and documents that were related to the pending litigation between the County and LIPA.
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Index No.: 25774-11
Pagt: 2
Bya leiter May 11,2011, LLPA denied the County's FOIL request 011the ground
that It had no responsive records. LfPA explained that, although it maintaincd cel1ain e-l11ails
from 2003, which were backed up for disaster recovery purposes, they wcre not acccssible for the
purpose of running a search because LIP A no longer maintained the technology necessary to
access anti search thelll. Thus, there was no practical or reasonable way to search the back-up
tapes. Moreover, il was LIPA's position that it was not required to expend the erfon nceded to
restore t>malls through the use of back-up tapes in order to search for particular e-l11ailsin
response to a FOIL request.
By a IcHer dated] une 23, 2011, the County appealed LIPA 's denial of Its FOIL
request. The County argued that LIPA had a responsibility 10 restore information from back-up
tapes in order to conduct a search for the requested records, which were relevant to the
determination of unresolved legal and factual issues in the pending civil action and within the
scapI.: of pCl111issibiediscovery III that action. Bya leItcr dated July II, 20 II, UPA denied the
County's <lppeal for the following reasons:
LlPA has no responsive records and there is no practical or
reasonable way to restore and search "back-up" tapes from 2003.
LIrA has no back-up tapes prior to 2003. LlPA has maintained
data from 2003, which was backed-up for disaster recovery
purposes. However, the emai!s potcntially backed-up in 2003 are
not accessible for the purposes of running a search. Moreover the
2003 tapes arc not restorable using LirA's present IT systems,
since the tapes were created by currently outdated technology. The
first tapes that LIPA may be able to restore using technology \vithin
LlPA's possession are from 2005.
L1PA no longer maintains the technology to restore any or the 2003
tapes. Even if the technology relevant to the 2003 tapes was
available, it is not clear that the tapes could be restored. After
purchasing (if it could be located) the compatible software and
hardware, LlPA would then need to recreate, at its ratepayers'
expense, an environment for that specific plIIVOSC. L1PA would
then have to reassign an employee from its limited starf, lor
potentially a week or longer, to attempt to individually restore the
"mailboxes" and search eacll'lndividual mailbox for the emaJis for
.each respective tape and user.
PJt is not practical or reasonable for LIPA to undergo such
activities in response to your request under FOll •.
The County commenced this CPLR article 78 proceeding on Augusl 15,2011. On
August 31, 20 II, the County filed an amended notice of petition and amended petition.
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lnd-:x No.: 25774-11
Page 3
Accordingly, the originul notice of petition and petition are deemed withdrawn and superceded
by the amended notice of petition and amended petition. The County seeks to compel LlPA to
comply wilh its FOIL request and to tum over the requested e-mails, as well as additional
documents and e-mails related to "plans and schedules for retiring debt associated with the
Shor~hall1 Nuclear Power Station and related surcharges on Suffolk County rate payers for the
period starting with LlPA acquiring the assets of the fonner Long Island Lighting Company until
the prcscnl" and"a complete current accounting of the status of all debt related to the Shoreham
Nuckar Power Station asset."
A party requesting documents under FOIL must adhere to the procedure
articulated in § 89 of tile Public Officers Law (People \' Seeley, 179 Misc 2d 42, 48). Under § 89
(J), a party sceking the production of documents must first make a written request that
reasonably describes the items sought to the agency holding such documents (ld. at n 5). There
is no ~vidcnce in the record that the County made a written request to UP A for Ihe additIOnal
doculllents and e-mails that it now seeks. Having failed to follow the mandated procedure, Ihe
County has not exhausted its administrative remedies with regard to such addilional documcnts
and e-Illails (Id.; see also, Matter of Bentley \' Demskie, 250 AD2d 886, 886-887).
Accordingly, the County's request for additional documents and c-mails is denied.
When reviewing the denial of a FOIL request, the court is to presume that all
records of a public agency are open to public lllspcction and copying (Matter of New York
COlllmittee "01· Occupational Safety and Health v Bloomberg, 72 AD3d 153, 158). An
ag~llcy must make available for public inspection and copying all records unless it can claim a
specific exemption from disclosure (Matter of Data Tree, LLC v ROlIl.ltine, l) NY3d 454, 462,
cifing Public Otlicers Law § 87 [2]). The term "record" is defined to include "computer tapes or
discs" (Puolic Officers Law § 86 [4]). In denying the Counly's FOIL request, UPA did not rely
on allYorthe exemptions from disclosure fi.lund in Public Officers Law § 87 (2). Rather, L1PA
Cl<llllledtlJat it no longer maintained the requested information in an electronic format that was
accessibk and that the County's FOIL request required the creation ora new record.
An agency is not required to create records in order 10 comply with a FOIL request
(Malter of Data Tree, sl/pm at 464). Public Officers Law § 89 (3) (3) provides, ··Nothing in this
anicle shall be construed to require any entity to prepare any record not possessed or mainLained
by such entity." Thus, an agency has no obligation to accommodate a request to compile dala in
a preferable commercial electronic fomlat when the agency docs not maintain the records in such
a manner (ld. at 464). If the records are maintained electronically by an agency and are
relrievable with reasonable effort, the agency is required to disclose the infonnatioll. In sllch a
situation lhe agency is merely retrieving the electronic data that it has already compiled and
copying il onlO another electronic medium (ld. at 464-465). On the olher hand, if the agency
does nol maintain the records in.a transferable electronic fonnal, then the agency should nOIbe
required 10 create a new documents to make its records transferable (Id. at 465). A sllllple
manipulation of the computer necessary to transfer existing records should not, if it does not
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Index No.: 25774-11
Page 4
itl\'olvc signi fieant time or expense, be treated as the creation or a ncw document (I d.).
The question then is whether the computer manipulation that LlPA claims is
necessary to retrieve the requested e-mails constitutes a "simple malllpulation of the computer
necessary (0 transfer existing records" or the creation of a new document. The fonner does not
excuse responding to the County's FOlL request, while the latter does (see, Matter of New York
Committee for Occupational Safety and Health, supra at 161).
In opposition to the amended petition, UPA has produced an affidavit from its
Director oflnfonllation Technology in which she avers:
In order to ascertain whether any data on any of the back-up tapes
is responsive to Suffolk's FOlL request, the entirety of the data on
the tape must be restored and retrieved. However, the tapes created
prior to 2005 are not restorable using LIPA's present IT systems
since the tapes were created by currently outdated technology.
Prior to 2005, LIPA used DLT tapes to back-up its data. Beginning
in or about April 2005, LIPA used LTO tapes to back~up its
exchange and file servers. Each back-up tape must be restored
using the technology that created it (01.T versus LTO). LlPA no
longer maintains the hardware to restore any of the DLT tapes.
The LTO tapes created from April 2005 to M"LY 2008 can only be
restored by creating a new environment with a new exchange
scrvcr. ...,l tedious process that would consume an inordinate
amount oftimc, \vith no assurancc that any responsive record
would actually be retrieved. In particular, LJPA would nced to
create, at its expense, a new environment with a new exchange
server for the specific purpose of restoring the back-up tapcs ....[I}
would take a trained information technology professional
approximately 7-] 0 days to create such an exchange environment.
Once an appropnate environment is created, each tape would take
approximately 8-10 hours of professional time to restore.
In reply, the County contends that there are commerciully available software and
services that can restore and recover the requested e~mails from the back-up tapes .
. Even if, as the County contends, the back-up tapes can be restored using
commercially available software or services, the restoration would require LlPA to purchase the
software or hire a third-party vendor. The County has provided the courl with no case law or
other authority that would require LIPA to make such an expenditure in order to respond to a
FOIL request. The cases upon which the County relics involve the discovery ofclectronic
documents in pending civil actions (see, Delta Fin. Co.-p. v Morrison, 13 Mise 3d 604;
Zubulakc \' UBS Warburg LLC, 220 FRD 212 [SDNY 2003J, 229 FRD 422 [SUNY 20041;
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Index No : 25774-11
Page 5
Einstein v 357 LLC, 2009 NY Slip Op 32784[U]) and are inapplicable to the facts of this case.
That the County IS a civil litigant is irrelevant. When rcqucsting documents or records under
r-OIL, the entitlement to the document or record is based on the petitioner's status as a member
oCLhepublic. The County's status as a litigant in a pending mattcr neither enhances nor restricts
ils rights under FOIL (People v Seeley, supra at 47-48 [and cases cited therein).
The court finds that, in order to respond to the County's FOIL requcst, LlPA
would need to compile the data in an electronic lonnat in which LlPA docs not maintain the
n.:cords. LIPA's back-up tapes arc maintained in an electronic Jormat that LlPA no longIJr has
the hardware to restore. Thus, they are not retrievable WIlh reasonable errort. l.JP 1\ would have
to creak new documents using software or services that it would need to purchase fi·olll third
parties in order to comply with the County's FOIL request. Any documents so produced could
nOL be produced by a simple manipulation of the computer and would involve significant time
ai'll! expense. Accordingly, the County's FOlL request was properly denied.
In view of the foregoing, the County is not entitled to altorney's fees (see, Public
omecrs Law § 89 [4][e]).
Dated:
April 3, 2012
J.S.C.
