News
19 Dec 2007
DLA Piper successfully represents Data Tree LLC
In Landmark Freedom of Information Law Decision, Court Holds That Agencies Bear Burden of Proving Exemptions; Finds for First Time that Agencies Must Produce Records in Electronic Form
Press Release
(New York) – DLA Piper successfully represented Data Tree LLC, the largest real estate information company in the country, in a landmark appeal under New York’s Freedom of Information Law (FOIL). The New York Court of Appeals, the highest court in the state, reversed an Appellate Division decision that had upheld the Suffolk County Clerk’s refusal to provide Data Tree with electronic copies of recorded land documents such as deeds and mortgages.
The Appellate Division had found that Data Tree bore the burden of proving that no FOIL exemption applied to the documents and had no right to receive the documents because it was acting for commercial purposes. The Court of Appeals squarely rejected this ruling. It held that the Clerk, not Data Tree, bore the burden of proving FOIL exemptions, and that it was improper for an agency to deny access to public records on grounds that the requestor was acting from a commercial motive. Even where such records may contain private information such as social security numbers, the Court held, agencies have a statutory duty to redact the private information and produce the redacted records if possible.
For the first time, the Court of Appeals held that where agencies maintain records in electronic form (for example, as computer-scanned images), FOIL gives the public the right to receive copies of the records on a compact disc or other electronic medium, if the records can be retrieved and copied with reasonable effort. It rejected the argument that making such copies would involve creation of a new record. The Court of Appeals returned the case to the trial court for a hearing to determine whether there was private information in the requested documents that required redaction and whether the Clerk’s computerized records could be transferred with reasonable effort to another electronic medium.
“The decision by the Court of Appeals is an important step forward not only for Data Tree, but for the public, the traditional media, and information publishers. It reaffirms the public’s broad right to access the records of government and the presumption that all records are subject to disclosure unless an agency proves otherwise. Moreover, today most public records are maintained in computer format, and most people use computers and the Internet to read, analyze, and communicate information. By ruling that agencies must use reasonable effort to provide the public with electronic copies of their computerized records, the Court has ensured that FOIL will remain relevant in the 21st century,” said Andrew L. Deutsch, partner in DLA Piper’s Intellectual Property practice and lead counsel for the Data Tree case. “We are pleased to have represented Data Tree throughout this complex case and we are confident about prevailing in the upcoming hearing.”
DLA Piper’s Intellectual Property practice offers clients comprehensive IP services, including patent, trademark, and copyright litigation, patent prosecution, IP due diligence and strategic IP asset management. The firm has more than 425 IP attorneys globally and 220 IP attorneys in the U.S., which ranks the group among the largest IP practices in the world. DLA Piper’s Patent Litigation practice in the U.S. alone includes more than 80 lawyers. The firm has handled more than 150 patent cases in U.S. district courts and the ITC over the past three years.
About DLA PiperDLA Piper has 3,600 lawyers in 25 countries and 64 offices throughout the U.S., U.K., Continental Europe, Middle East and Asia. It has leading practices in corporate, finance, human resources, litigation, real estate, regulatory and legislative, tax, and technology, media and communications. Former Senate Majority Leader George J. Mitchell is Chairman of DLA Piper. In certain jurisdictions, this information may be considered attorney advertising.
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CONTACTS:
Andrew Deutsch, Partner, Intellectual Property practice, DLA Piper, 212.335.4880
Jason Costa, Media Relations, DLA Piper, 212.776.3739
Kristen Griffin, Media Relations, GreenTarget Global Group, 312.252.4107