IN RE: Jimmy WAGNER (2023)

Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered May 17, 2023, denying the petition to annul respondent's determination dated October 13, 2022, which denied petitioner's Freedom of Information Law (FOIL) request, direct the DOE to conduct an adequate search of responsive records, or in the alternative for a framed issues hearing, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The denial of petitioner's FOIL request, on the grounds that it did not seek “a record reasonably described” (Public Officers Law § 89[3][a]), was not affected by an error of law (see CPLR 7803[3];  Matter of Barry v. O'Neill, 185 A.D.3d 503, 505, 128 N.Y.S.3d 183 [1st Dept. 2020]).  Petitioner sought all emails during a 17–month period between any DOE email address and any email address from a neutral arbitrator's firm.  The administrative record and the DOE's proffered affidavits demonstrate “that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document[s] from the virtual files through an electronic word search ․ [by] name or other reasonable technological effort” (Matter of Puig v. New York State Police, 212 A.D.3d 1025, 1026, 181 N.Y.S.3d 759 [3d Dept. 2023] [internal quotation marks omitted]).

DOE maintains over 1 million email mailboxes.  When it searched its database using the description given by petitioner, the “system searches never appeared to end during the course of the day, continuing through the next day, then stopping and timing out” (see Matter of Aron Law, PLLC v. New York City Dept. of Educ., 192 A.D.3d 552, 552, 146 N.Y.S.3d 7 [1st Dept. 2021], lv denied 37 N.Y.3d 907, 2021 WL 4163672 [2021]).  Petitioner, when asked twice to provide a narrower timeframe, names or titles of DOE employees who might be custodians of the emails sought, and key terms to be searched, simply refused (see Matter of Jewish Press, Inc. v. New York State Police, 207 A.D.3d 971, 974, 171 N.Y.S.3d 649 [3d Dept. 2022]).  As the DOE sought petitioner's cooperation in narrowing the scope of his request, the record shows that the DOE did not know where the requested records were located (cf.  Matter of Jewish Press, Inc. v. New York City Dept. of Educ., 183 A.D.3d 731, 732–733, 122 N.Y.S.3d 679 [2d Dept. 2020]).

Furthermore, whereas in reply before Supreme Court petitioner proposed a script that would reduce the number of mailboxes being searched, “[n]either the language of the original request nor that of the administrative appeal demonstrates that the limitations now proposed were previously enunciated or provided” to the DOE (Matter of Reclaim the Records v. New York State Dept. of Health, 185 A.D.3d 1268, 1272, 128 N.Y.S.3d 303 [3d Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1218268 [2021]).  In any event, Supreme Court appropriately declined to entertain petitioner's proposed means of narrowing the search, which were raised for the first time in reply (see e.g. Matter of Cintron v. Calogero, 99 A.D.3d 456, 458, 952 N.Y.S.2d 24 [1st Dept. 2012], lv denied 22 N.Y.3d 855, 2013 WL 6097149 [2013];  Matter of Miller v. Kozakiewicz, 300 A.D.2d 399, 400, 751 N.Y.S.2d 524 [2d Dept. 2002]).  Finally, because the DOE did not deny the FOIL request based on petitioner seeking voluminous records or claiming that conducting the search would be unduly burdensome or require the creation of new documents, petitioner was not entitled to a hearing to resolve those purported issues of fact (see CPLR 7804[h];  compare Matter of Cuddy Law Firm, P.L.L.C. v. New York City Dept. of Educ., 191 A.D.3d 558, 558, 138 N.Y.S.3d 863 [1st Dept. 2021];  Matter of New York Comm. for Occupational Safety & Health v. Bloomberg, 72 A.D.3d 153, 161–162, 892 N.Y.S.2d 377 [1st Dept. 2010]).

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