IN RE: The JEWISH PRESS INC. (2023)

Judgment (denominated an order), Supreme Court, New York County (William Franc Perry, J.), entered on or about September 12, 2022, to the extent appealed from as limited by the briefs, denying the petition brought pursuant to CPLR article 78 to the extent it seeks costs and attorneys' fees, unanimously affirmed, without costs.

The court properly denied petitioner an award of costs and attorneys' fees, as petitioner failed to establish that respondent lacked a “reasonable basis” for denying petitioner's Freedom of Information Law (FOIL) request (see Public Officers Law § 89[4][c][ii];  Matter of Aron Law PLLC v. New York City Police Dept., 217 A.D.3d 620, 190 N.Y.S.3d 74 [1st Dept. 2023]).  The information sought by petitioner – a FOIL “log for the past two years, reflecting whatever information you track regarding [FOIL] requests, preferably in [E]xcel format” – was not maintained by respondent, and respondent was not required to create a new record in order to comply with the request (see Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 464, 849 N.Y.S.2d 489, 880 N.E.2d 10 [2007]).  Although respondent ultimately responded with the information after the commencement of this CPLR article 78 proceeding, those Excel files were newly generated from information exported from the Open Records Portal maintained by an outside agency, which respondent was under no obligation to provide (see Matter of New York Envtl. Law & Justice Project v. City of New York, 286 A.D.2d 307, 307, 730 N.Y.S.2d 285 [1st Dept. 2001]).

We have considered petitioner's remaining arguments and find them unavailing.