In an April 3, 2012 decision by Justice Emerson, the court denied the plaintiff’s Article 78 petition to compel LIPA to produce certain e-mails in response to a FOIL request the plaintiff made in connection with pending litigation between the parties. The plaintiff commenced the special proceeding after LIPA denied its FOIL request for certain electronic data on the grounds it no longer maintained the information which was stored only on backup tapes from 2003, kept for emergency situations, and that LIPA no longer had technology necessary to search the back-up tapes for the specific e-mails. In denying the motion to compel, the court found that the plaintiff failed to exhaust its administrative remedies under § 89 of the Public Officers Law because there was no evidence that the plaintiff made a written request for the specific documents and e-mails it sought in its petition, as required. Additionally, the court also found that in responding to the FOIL request, LIPA would not be simply manipulating computerized data and transfer existing records. Rather, LIPA would be forced to create new documents and purchase specific software from third parties at considerable expense, which it was not required to do under the Public Officers Law.
County of Suffolk v Long Island Power Auth., Sup Ct Suffolk County, April 3, 2012, Emerson, J, Index No. 25774-11.