Parties involved in disputes with public agencies generally know that those entities are subject to requests under the New York Freedom of Information Act (FOIL). It is also settled that public agencies involved in civil litigation likewise remain subject to CPLR requests. Litigants thus have an opportunity to bring a two-front attack when obtaining documents from a public agency. The CPLR and the FOIL statutes operate in tandem, and choosing one route to obtain documents from a public agency does not preclude use of the other. The tandem operation of these two statutes brings, however, an often unappreciated twist. Under FOIL, public agencies enjoy certain exceptions to the obligation to produce documents. Several courts, including three of the Appellate Division departments, hold that the exceptions to production found in the FOIL statute may be used defensively in civil litigation, thereby permitting a public agency to withhold documents for FOIL-based reasons.
Recent jurisprudence from the Appellate Division, Fourth Department has opened a chasm in the intersection between the CPLR discovery devices and the operation of FOIL. While the other Appellate Division departments hold that exceptions to production found in FOIL may be used in standard civil litigation, the Fourth Department disagrees. This tension in the departments is ripe for a Court of Appeals resolution. This article will discuss the conflict and suggest a resolution based on existing Court of Appeals authority.
