January 12, 2018

Does a Litigant Need to Provide Notice of Serving a FOIL Demand?

4 min

As this author has explained in earlier articles and client alerts, it is settled that a litigant in a New York proceeding under the Civil Practice Law and Rules (CPLR) continues to have an unfettered right to use the Freedom of Information Law (FOIL) to obtain documents from public agencies subject to FOIL. In an article published three months ago in the New York Law Journal, I explained the reasoning undergirding the New York Court of Appeals' decision in Farbman & Sons v. New York City Health & Hospital Corp., 62 N.Y.2d 75 (1984), and its recent progeny. This line of cases reflects a doctrine that a public agency's records remain as available to its litigation adversary as they are to any other person using FOIL. A corollary to that doctrine is that a party in litigation not involving a public agency may nevertheless use the FOIL device to access public records for potential use in the litigation. If a litigant can seek FOIL documents from a public agency against which it is litigating, it is beyond dispute that a litigant can also seek documents from an agency as a third party, one not involved in the litigation.

Since the publication of my October 2017 article, a question has surfaced in practice and from readers whose practices touch upon the FOIL statute. Does a litigant who sends a FOIL request to a third-party public agency need to provide notice of the FOIL demand to an adversary in the law suit? The answer is no, though the authority for this proposition is limited. Whether the case law is limited because the answer is patently clear or because the question is rarely litigated is unknown.

The FOIL notice issue in a litigation context last arose in a reported decision of the Supreme Court, New York County, in 2009. In Castle House Development v. New York City Police Dep't., 24 Misc.3d 1222 (A) (N.Y. Sup. Ct. 2009), Justice Alice Schlesinger grazed the issue in such a manner as to suggest the answer is so clear that it needs no detailed discussion. The facts in Castle House reflect a common scenario of how FOIL requests tend to be employed in litigation. Castle House was pulled into a litigation as a third-party defendant in a personal injury suit arising from a serious accident. Mustering its defense, Castle House sent a FOIL demand to the New York City Police Department (NYPD) seeking its files related to the accident. Castle House did not provide notice of the FOIL demand to the parties in the personal injury action.

The NYPD refused to produce documents in response to the FOIL demand on several grounds, including that Castle House had failed to give notice of the FOIL demand to the parties in the civil litigation, something that the NYPD concluded was unfair. In the ensuing Article 78 proceeding that Castle House brought as petitioner against the NYPD to compel production of the accident report files, Justice Schlesinger questioned why the NYPD believed it proper to make judgments about production in a FOIL demand on the basis of protecting the interests of a party in civil litigation. Justice Schlesinger noted that there is no requirement that a litigant in a civil action provide notice to parties of its issuance of a FOIL request for documents related to the litigation. Following a thorough discussion of Farbman and its reasoning, Justice Schlesinger held that there is nothing in FOIL "which speaks to the need to put anyone else on notice of the [FOIL] request, as a party would have to do when subpoenaing documents pursuant to the CPLR."

The Castle House decision, aside from relying on and discussing Farbman, cites no other authority for the proposition that a civil litigant does not need to provide notice to parties that it has issued a FOIL demand. Standing as it does in relative isolation, Castle House also has not been cited for this proposition; nor has it been challenged. Castle House, I submit, got it right, based largely on Farbman and its progeny. Unless the Appellate Division takes up the issue and concludes otherwise, the holding in Castle House provides good authority for a civil litigant to issue a FOIL demand without providing notice to parties in the civil lawsuit.