Shining a Light on Rattley: The Troublesome Diligent Search Standard Undercutting New York’s Freedom of Information Law

November 1, 2022

New York’s Freedom of Information Law (FOIL) provides citizens with access to the documents, statistics, and information relied on by New York State government agencies.  Modeled after the federal Freedom of Information Act (FOIA), New York legislators designed the state’s “sunshine law” to promote transparency and accountability through a presumption of disclosure by requiring agencies to make all records available to the public except those specifically exempted by statute.  But state agencies often rely on a separate, unceremonious reason to deny FOIL requests—they cannot find the documents.  FOIL requires an agency to certify that it performed a diligent records search to justify such a denial, but a 2001 holding by the New York Court of Appeals in Rattley v. New York City Police Department permits agencies to properly deny a request in this manner without describing the search or offering a statement from the individual who personally performed the search.  Despite FOIL’s promise of transparency and disclosure, an agency’s ability to deny a records request under Rattley without explaining its search efforts leaves requesters without their requested records and without meaningful recourse to challenge the agency’s alleged search in court.  This Note argues that the Rattley standard used in New York state courts renders FOIL’s diligent search requirement entirely toothless, creates an inequitable burden-shifting framework for the agency and the requester, and contradicts FOIL’s original legislative intent to promote disclosure.  This Note further argues that the New York Court of Appeals should replace Rattley with the federal courts’ reasonableness test and suggests a legislative fix to resolve FOIL’s statutory ambiguity regarding the diligent search certification requirement.

November 2022

No. 2