Freedom of Information Law (FOIL)

The Freedom of Information Law
Scope of the law
What is a record?
What are Accessible Records?
Protection of privacy
How to Obtain Records
Subject matter list
Regulations
Designation of records access officer
Requests for records
Fees
Denial of access and appeal
Public Notice
Access to records of the State Legislature
Access to Court Records
Sample REQUEST letter
Sample APPEAL letter

The Freedom of Information Law
The Freedom of Information Law, effective January 1, 1978, reaffirms your right to know how your government operates. It provides rights of access to records reflective of governmental decisions and policies that affect the lives of every New Yorker. The law preserves the Committee on Open Government, which was created by enactment of the original Freedom of Information Law in 1974.

Scope of the Law
The law defines "agency" to include all units of state and local government in New York State, including state agencies, public corporations and authorities, as well as any other governmental entities performing a governmental function for the state or for one or more units of local government in the state (section 86(3)).
The term "agency" does not include the State Legislature or the courts. As such, for purposes of clarity, "agency" will be used hereinafter to include all entities of government in New York, except the State Legislature and the courts, both of which will be discussed later.

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What is a Record?
The law defines "record" as "any information kept, held, filed, produced or reproduced by, with or for an agency or the State Legislature, in any physical form whatsoever..." (section 86(4)). Thus it is clear that items such as tape recordings, microfilm and computer discs fall within the definition of "record."

Accessible Records
The original statute granted rights of access to nine specified categories of records to the exclusion of all others. Therefore, unless a record conformed to one of the categories of accessible records, it was presumed deniable. The current law, reversing that presumption, states that all records are accessible, except records or portions of records that fall within one of nine categories of deniable records (section 87(2)).
Deniable records include records or portions thereof that: (a) are specifically exempted from disclosure by state or federal statute; (b) would if disclosed result in an unwarranted invasion of personal privacy; (c) would if disclosed impair present or imminent contract awards or collective bargaining negotiations; (d) are trade secrets or are maintained for the regulation of commercial enterprise and if disclosed would cause substantial injury to the subject enterprise; (e) are compiled for law enforcement purposes and which if disclosed would: i. interfere with law enforcement investigations or judicial proceedings; ii. deprive a person of a right to a fair trial or impartial adjudication; iii. identify a confidential source or disclose confidential information relative to a criminal investigation; or iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures; (f) would if disclosed endanger the life or safety of any person; (g) are inter-agency or intra-agency communications, except to the extent that such materials consist of: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; or iv. external audits, including but not limited to audits performed by the comptroller and the federal government. (h) are examination questions or answers that are requested prior to the final administration of such questions; or (i) are computer access codes.
The categories of deniable records are generally directed to the effects of disclosure. They are based in great measure upon the notion that disclosure would in some instances "impair," "cause substantial injury," "interfere," "deprive," "endanger," etc. This represents a significant change from the thrust of the original enactment. One category of deniable records that does not deal directly with the effects of disclosure is exception (g), which deals with inter-agency and intra-agency materials. The intent of the exception is twofold. Memoranda or letters transmitted from an official of one agency to an official of another or between officials within an agency may be denied, so long as the communications (or portions thereof) are advisory in nature and do not contain information upon which the agency relies in carrying out its duties. For example, an opinion prepared by staff which may be rejected or accepted by the head of an agency need not be made available. However, the facts, policies and determinations upon which an agency relies in carrying out its duties should be made available. There are also special provisions in the law regarding the protection of trade secrets. Those provisions pertain only to state agencies and enable a person submitting records to state agencies to request that records be kept separate and apart from all other agency records on the ground that they constitute trade secrets. In addition, when a request is made for records characterized as trade secrets, the submitter of such records is given notice and an opportunity to justify a claim that the records would if disclosed result in substantial injury to his or her competitive position. A member of the public requesting records characterized as trade secrets or a state agency at any time may challenge a claim that records constitute trade secrets. Generally, the law provides access to existing records. Therefore, an agency need not create a record in response to a request. Nevertheless, each agency must compile the following records (section 87(3)): (a) a record of the final vote of each member in every agency proceeding in which the member votes; (b) a record setting forth the name, public office address, title and salary of every officer or employee of the agency; and (c) a reasonably detailed current list by subject matter of all records in possession of an agency, whether or not the records are accessible.

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Protection of Privacy
One of the exceptions to rights of access, referred to earlier, states that records may be withheld when disclosure would result in "an unwarranted invasion of personal privacy" (section 87(2)(b)). Unless otherwise deniable, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy when identifying details are deleted, when the person to whom a record pertains consents in writing to disclosure, or when upon presenting reasonable proof of identity, a person seeks access to records pertaining to him or her.

How to Obtain Records

Subject Matter List
As noted earlier, each agency must maintain a "subject matter list." The list is not a compilation of every record an agency has in its possession, but rather is a list of the subjects or file categories under which records are kept. It must make reference to all records in possession of an agency, whether or not the records are available. You have a right to know the kinds of records agencies maintain.
The subject matter list must be compiled in sufficient detail to permit you to identify the file category of the records sought.

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Regulations
Each agency must adopt standards based upon general regulations issued by the committee. These procedures describe how you can inspect and copy records. The committee will provide a copy of its regulations on request.

Designation of Records Access Officer
Under the regulations, a records access officer (or officers) must be appointed to coordinate an agency's response to public requests for records. The records access officer is responsible for keeping the subject matter list up to date, assisting you in identifying records sought, making the records promptly available or denying access, providing copies of records or permitting you to make copies, certifying that a copy is a true copy and, if the records cannot be found, certifying either that the agency does not have possession of the requested records or that the agency does have the records, but they cannot be found after diligent search.
The regulations also state that the public shall continue to have access to records through officials who have been authorized previously to make information available.

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Requests for Records
An agency may ask you to make your request in writing. The law merely requires you to "reasonably describe" the record in which you are interested (section 89(3)). The responsibility of identifying and locating records sought rests to an extent upon the agency. However, if possible, you should supply dates, titles, file designations, or any other information that will help to find requested records.
Within five business days of the receipt of a written request for a record reasonably described, the agency must make the record available, deny access in writing giving the reasons for denial, or furnish a written acknowledgment of receipt of the request and a statement of the approximate date when the request will be granted or denied.

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Fees
Copies of records must be made available on request. Except when a different fee is prescribed by statute, an agency may not charge for inspection, certification or search for records, or charge in excess of 25 cents per photocopy up to 9 by 14 inches (section 87(1)(b)(iii)). Fees for copies of other records may be charged based upon the actual cost of reproduction. If an agency has no photocopying equipment, a transcript of records must be made on request. However, you may be charged for the clerical time involved.

Denial of Access and Appeal
A denial of access must be in writing, stating the reason for the denial and advising you of your right to appeal to the head or governing body of the agency or the person designated to hear appeals by the head or governing body of the agency. You may appeal within 30 days of a denial.
Upon receipt of the appeal, the agency head, governing body or appeals officer has 10 business days to fully explain in writing the reasons for further denial of access or to provide access to the records. Copies of all appeals and the determinations thereon must be sent by the agency to the Committee on Open Government (section 89(4)(a)). This requirement will enable the committee to monitor compliance with law and intercede when a denial of access may be improper.
You may seek judicial review of a final agency denial by means of a proceeding initiated under Article 78 of the Civil Practice Law and Rules. When a denial is based upon one of the exceptions to rights of access that were discussed earlier, the agency has the burden of proving that the record sought falls within one or more of the exceptions (section 89(4)(b)). A new provision in the Freedom of Information Law permits a court, in its discretion, to award reasonable attorney's fees when a person challenging a denial of access to records in court substantially prevails. To award attorney's fees, a court must find that the record was of "clearly significant interest to the general public" and that the agency "lacked a reasonable basis at law for withholding the record." While a court may award attorney's fees, such an award is not mandatory.

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Public Notice
The regulations require that each agency post conspicuously and/or publicize in a local newspaper:

• locations where records are made available;
• the name, title, business address and telephone number of the records access officer; and
• the right to appeal a denial of access and the name and business address of the person or body to whom appeals should be directed.

  Access to Records of the State Legislature
  Section 88 of the Freedom of Information Law applies only to the State Legislature and provides access to the following records in its possession: (a) bills, fiscal notes, introducers' bill memoranda, resolutions and index records; (b) messages received from the Governor or the other house of the Legislature, as well as home rule messages; (c) legislative notification of the proposed adoption of rules by an agency; (d) transcripts, minutes, journal records of public sessions, including meetings of committees, subcommittees and public hearings, as well as the records of attendance and any votes taken; (e) internal or external audits and statistical or factual tabulations of, or with respect to, material otherwise available for public inspection and copying pursuant to this section or any other applicable provision of law; (f) administrative staff manuals and instructions to staff that affect the public; (g) final reports and formal opinions submitted to the Legislature; (h) final reports or recommendations and minority or dissenting reports and opinions of members of committees, subcommittees, or commissions of the Legislature; and (i) external audits conducted pursuant to Section 92 of the Legislative Law and schedules issued pursuant to Section 90(2) of the Legislative Law (note: this re mains in effect until Jan. 1, 1994); (j) any other records made available by any other provision of law.
  In addition, each house of the Legislature must maintain and make available: (a)a record of votes of each member in each session, committee and subcommittee meeting in which the member votes; (b) a payroll record setting forth the name, public office address, title and salary of every officer or employee; and (c) a current list, reasonably detailed, by subject matter of any records required to be made available by section 88. Each house is required to issue regulations pertaining to the procedural aspects of the law. Requests should be directed to the public information officers of the respective houses.

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  Access to Court Records
  Although the courts are not subject to the Freedom of Information Law, section 255 of the Judiciary Law has long required the clerk of a court to "diligently search the files, papers, records and dockets in his office" and upon payment of a fee make copies of such items.
  Agencies charged with the responsibility of administering the judicial branch are not courts and therefore are treated as agencies subject to the Freedom of Information Law.

  Sample Request Letter
  Records Access Officer Name of Agency Address of Agency City, NY, zip code Re: Freedom of Information Law Request Dear Records Access Officer: Under the provisions of the New York Freedom of Information Law, Article 6 of the Public Officers Law, I hereby request records or portions thereof pertaining to ______________________________________________________________ (attempt to identify the records in which you are interested as clearly as possible). If there are any fees for copying the records requested, please inform me before filling the request (or: ... please supply the records without informing me if the fees are not in excess of $_______ ). As you know, the Freedom of Information Law requires that an agency respond to a request within five business days of receipt of a request. Therefore, I would appreciate a response as soon as possible and look forward to hearing from you shortly. As for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name and address of the person or body to whom an appeal should be directed. Sincerely, Signature Name Address City, State, zip code

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  Sample Appeal Letter
  

  Name of Agency Official

  Appeals Officer

  Name of Agency

  Address of Agency

  City, NY, zip code

  Re: Freedom of Information Law Appeal

  Dear________:

  I hereby appeal the denial of access regarding my request, which was made on (date) and sent to (records access officer, name, and address of agency). The records that were denied include: (enumerate the records that were denied). As required by the Freedom of Information Law, the head or governing body of an agency, or whomever is designated to determine appeals, is required to respond within 10 business days of the receipt of an appeal. If the records are denied on appeal, please explain the reasons for the denial fully in writing as required by law.

  In addition, please be advised that the Freedom of Information Law directs that all appeals and the determinations that follow be sent to the Committee on Open Government, Department of State, 162 Washington Avenue, Albany, New York 12231.

  Sincerely,

  Signature

  Name

  Address

  City, State, zip code

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