In Matter of New York Commn. for Occupational Safety & Health v. Bloomberg (72 AD3d 153, 892 NYS2d 377 [1st Dept 2010]), the City of New York was faced with a FOIL request for the raw data used by the Mayor to create the 2006 annual report required by Administrative Code § 12-127.
The City contended that, in order to comply with the request for the raw data, it would have had to create an entirely new record.
The Court determined that it was "unclear based on the record before it whether the manipulations of the existing records required to comply with the request fell within the realm of running programs within already existing software, or within the realm of creating new software which would not otherwise exist but for the FOIL request." (Matter of New York Commn. for Occupational Safety & Health v. Bloomberg, 72 AD3d at 162.)
In the last paragraph of the decision, the Court also recognized that the case "presented a situation where the volume of records was undisputedly large, and those records not only needed to be retrieved and reproduced from a wide variety of sources, but redacted as well." (Id.)
"Accordingly, the Court directed that the hearing . . . also encompass whether an undue burden would be created by requiring the City to respond to the petitioner's request." (Id.)
The decretal paragraph clarified that the hearing was meant to ascertain "whether producing responsive records that are maintained in hard copy would place an undue burden on respondents," and explicitly excluded records maintained electronically from the undue burden issue. (Id. at 163.)