Administrative Law – Freedom of Information Law (FOIL)

Freedom of Information Law (FOIL)

What Is FOIL?
New York State’s Freedom of Information Law (Public Officers Law §87 et. seq.), effective January 1, 1978, reaffirms our right to know how our government operates by allowing members of the public to access records of governmental agencies reflective of governmental decisions and policies that affect the lives of every New Yorker.

FOIL requests are closely analogous to FOIA requests to the United States government based on its Freedom of Information Act. The law preserves the Committee on Open Government, which was created by enactment of the original Freedom of Information Law in 1974 and FOIL provides a process for the review and copying of agencies’ records.

FOIL 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. All NYS agencies are subject to the Freedom of Information Law, however, this does not include the New York State Legislature or the courts. To clarify, the New York State Legislature (the Senate and Assembly) IS covered by FOIL, but it is treated differently from other state agencies.

Accessible Records
FOIL is based on a presumption of access, stating that all records are accessible, except records or portions of records that fall within one of several categories of “deniable records”. All records are subject to the FOIL, and the law defines “record” as any information kept, held, filed, produced or reproduced by, with or for an agency… in any physical form whatsoever. Items such as audio or visual recordings, data maintained electronically, and paper records are deemed as “accessible records”. It should be noted that the courts have held that an agency must provide records in the form requested if it has the ability to do so, however, an agency is not required to create a new record or provide information in response to questions to comply with the law. “Personal Privacy” is a notable exception to right of access to agency records. Right of access may be withheld when disclosure would result in “an unwarranted invasion of personal privacy” (§87(2)(b)). However, the statute provides a carve out to this exception whereby “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 herself.”

Deniable Records
“Deniable records” and what constitutes “Deniable records” is set forth in (§87(2)) of the FOIL. The following excerpt is a listing of what records are deemed to be “Deniable Records”:

  • are specifically exempted from disclosure by state or federal statute;
  • would if disclosed result in an unwarranted invasion of personal privacy;
  • would if disclosed impair present or imminent contract awards or collective bargaining negotiations;
  • are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise;
  • are compiled for law enforcement purposes and which if disclosed would:
    1. interfere with law enforcement investigations or judicial proceedings;
    2. deprive a person of a right to a fair trial or impartial adjudication;
    3. identify a confidential source or disclose confidential information relative to a criminal investigation; or
    4. reveal criminal investigative techniques or procedures, except routine techniques and procedures;
  • could if disclosed endanger the life or safety of any person;
  • are inter-agency or intra-agency communications, except to the extent that such materials
    consist of:

    1. statistical or factual tabulations or data;
    2. instructions to staff that affect the public;
    3. final agency policy or determinations; or
    4. external audits, including but not limited to audits performed by the comptroller and the federal government;
  • are examination questions or answers that are requested prior to the final administration of such questions; or
  • if disclosed, would jeopardize an agency’s capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures.

The FOIL Request
Since agency creates and maintains its own records a requestor will need to identify the agency which has the records he/she wants. Once the requestor has identified the appropriate agency for his/her request, he/she needs to locate the contact information for that agency’s Records Access Officer (RAO). Each agency has at least one RAO who is responsible for handling FOIL requests to that agency.

Once the requestor has identified the agency and the agency’s RAO, he/she can begin to draft the request using the Request Template provided by the NY Department of State. In the top left of your request, address your request to the records access officer for the agency and include the physical address. The FOIL request should be as specific as possible therefore the requestor should provide as much information as possible about the records being sought, including dates, titles of documents, names, file designations, or any other information that will help the RAO locate the correct records. Not everything goes according to plan, so the requestor should provide a means of re-contact if something does go awry. The requestor should include a simple statement such as “If the above FOIL request is extensive or fails to reasonably describe or identify sought after records, please contact me in writing, email (******@********.com) or by phone (***) ***-****.”

I have included the NY DoS Request Templates (Written and Email request templates) below for your convenience:

Written Request (sample)

Records Access Officer
Name of Agency
Address of Agency
City, NY, ZIP code

Re: Freedom of Information Law Request
Records Access Officer

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 (or containing the following) __________________ (attempt to identify the records in which you are interested as clearly as possible). If my request appears to be extensive or fails to reasonably describe the records, please contact me in writing or by phone at _______________.

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. If 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

Request via Email (Sample)
(It has been suggested that agencies create an email address dedicated to the receipt of requests. It is recommended that a requestor review the website of the agency maintaining the records that he/she seeks in order to locate its email address and its records access officer. The subject line of your request should be “FOIL Request”.)

Subject Line: FOIL Request

Dear Records Access Officer:

Please email the following records if possible (include as much detail about the record as possible, such as relevant dates, names, descriptions, etc.):

OR

Please advise me of the appropriate time during normal business hours for inspecting the following records prior to obtaining copies (include as much detail about the records as possible, including relevant dates, names, descriptions, etc.):

OR

Please inform me of the cost of providing paper copies of the following records (include as much detail about the records as possible, including relevant dates, names, descriptions, etc.).

AND/OR

If all of the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction).

If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD or floppy disk.

If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.

If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: _____________.

If 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, address and email address of the person or body to whom an appeal should be directed.

(Name)
(Address, if records are to be mailed).

The FOIL Response
A reasonably well-described requested record should net a response from the contacted agency within five (5) business days. Upon agency receipt of the request, it can take several courses of action:

  1. It will produce the record.
  2. It will deny the request and provide a written statement as to why the request was denied.
  3. It will approve the request and provide a written statement as to when the requestor can expect to receive the requested record.
  4. It will provide acknowledgement of receipt of the request and provide a written statement of when the requestor can expect an answer approving or denying the request.

If you have any questions or legal needs, don’t hesitate to contact us for assistance.


Disclaimer:
This document/post/article is not to be considered as legal advice. Content and information contained herein is subject to changes, modifications, and may contain inaccuracies or out-of-date information. As with any legal matter or other matters of importance, consultation with an attorney or professional is the best course of action.

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