Freedom of Information Law - May the FOIL Be With You

August 19, 2010

Author:  Brenna C. Terry 1

New York’s Freedom of Information Law (FOIL), Public Officers Law (POL), Article 6, Sections 84-90 allows the public to access the records of state and local government agencies.  The legislative declaration grandly proclaims that government is the public’s business and people have the right to know the information behind governmental decision-making, access to which “should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.” 2  The purpose of this article is to provide an overview of the law generally, and to cover certain areas that may assist in writing appeals to FOIL responses denying requests. 

FOIL, Generally

The Freedom of Information Law has been repeatedly upheld as “based on the strong policy conviction that ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government.’”  3   Supported by case law, the Law’s overall purpose is declared to be “that government is the public’s business and that the public, individually and collectively as represented by a free press, should have access to the records of government.”  4  This access “encourage[s] public awareness and understanding of and participation in government and [discourages] official secrecy.”  5 For these reasons, the courts of New York have repeatedly held “that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”  6  Additionally, courts have applied a literal construction of the statute.  7

Blanket exemptions for particular documents have been held as inimical to the clear and articulated policy of FOIL, which seeks to foster a more open government.  8  If an agency seeks to deny a request, it carries the burden of showing that the requested material falls squarely within a FOIL exemption  9 “by articulating a particularized and specific justification for denying access.”  10  Such exemptions include: (1) documents specifically exempted from disclosure by statute; (2) if disclosure would constitute an “unwarranted invasion of personal privacy”; (3) if disclosure would impair contract awards or collective bargaining negotiations; (4) records that are trade secrets; (5) various law enforcement issues; (6) endangering the life or safety of any person; (7) certain inter- or intra-agency materials; (8) examination questions or answers; (9) disclosures that would threaten the security of an agency’s IT assets; and (10) recorded images prepared under authority of Vehicle and Traffic Law §§ 1111–a and –b.

As a practical matter, drafting a FOIL request is easy.  It should be directed to the Records Access Officer of the agency and, in the case of many state agencies, may be made online with a convenient link on the agency website. The request should reasonably describe in sufficient detail the records being sought, and it should articulate the time period for which the records are sought.  11  The next sections of this article discuss issues that may arise in the context of FOIL requests: timelines, the definition of “record,” fees or costs, and confidentiality.

Important Timelines

Within five business days of receipt of a FOIL request, an agency must do one of three things: (1) furnish a written acknowledgment of receipt and a statement of an approximate date by which the request will be granted, (2) deny the request in writing, or (3) make the record available.  12  The “approximate date” should be within 20 business days from the date of acknowledgment.  If not, the agency must notify you in writing of the reason for its inability to grant the request within 20 days, and provide a reasonable date by which the request will be granted in whole or in part.  13   If an agency fails to conform to these provisions, it effectively constitutes a denial of the FOIL request.  14 

To contest a denial, you must submit a written appeal within 30 days to the agency’s head, chief executive, or governing body.  15  That person must, within 10 days of receiving the appeal, either provide access to the record or fully explain in writing the reasons for further denial.  16  After making a determination on your appeal, the agency must immediately forward a copy of the appeal with its determination to the Committee on Open Government.  17 

Definition of “Record”

For one FOIL request, we asked for the numerical data “information” contained in records instead of for the “records,” as in the actual documents themselves.  This was denied by some agencies because (1) our request did not seek “records” per se, (2) requesting such data would require the creation of a new record, and (3) compiling the data would be too burdensome.  We were able to successfully appeal in some instances.

The complete definition of “record,” according to POL § 86(4), is “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes” (emphasis added).  POL § 89(9), which was added and effective in 2008, pertains to electronically maintained records, stating that they should be maintained in a manner that provides for “maximum public access,” to permit the segregation and retrieval of information.  It should also be noted that regardless of the purpose for which documents are generated, where a state agency holds documents, they are subject to FOIL.  18

While it is true that FOIL shall not “be construed to require any entity to prepare any record not possessed or maintained by such entity,” 19 the New York Court of Appeals has held that “if the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information.  In such a situation, the agency is merely retrieving the electronic data that it has already compiled and copying it onto another electronic medium.”  20  A “simple manipulation” of the data requested should not be treated as the “creation of a new document.”  21

Furthermore, an agency “shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome . . . .”  22

Issue of Fees/Costs

According to POL § 87(1)(b)(iii), an agency may choose to charge fees for copies of records, which shall not exceed twenty-five cents per photocopied page, or the actual cost of reproducing any other record, except if another statute otherwise proscribes a fee.  23  It has been held that an agency may charge its established fee even though an applicant for records is indigent.  24  Costs may not, however, include search time or administrative costs, and no fee shall be charged unless it takes an agency employee at least two hours to prepare a copy of the record. 25  Similarly, an agency cannot charge a fee for the inspection of available records.  26

In the context of charging fees to indigents, compare the Freedom of Information Act (FOIA), applicable to documents controlled by the United States Government, which states that: “Documents shall be furnished without any charge or at a charge reduced below the fees established . . . if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”  27  In addition, the original U.S. Senate bill stated that, with respect to FOIA, “fees would ordinarily not be charged whenever the person requesting the records was indigent....”  28   Unfortunately, the bill was amended to delete this, but in doing so, “’the conferees [did] not intend to imply that agencies should actually charge fees....Rather, they felt, such matters [were] properly the subject for individual agency determination in regulations implementing the [FOIA].’”  29  This implies a rather liberal construction, which was echoed by the bill’s sponsor on the Senate floor—that the standard be “liberally construed.”  30

It is the opinion of the Committee on Open Government (COG), as issued in a recent advisory opinion dated May 27, 2010, that if redactions are made as a result of a review of existing records, whether those records exist on paper or electronically, the records would already have been “prepared” in the context of POL § 87(1)(c)(iv), which states in part that “preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of a record requested.”  31  As such, the COG has determined that no fee could be charged for the time involved in reviewing the already prepared documents and making the appropriate redactions.

Confidentiality

As mentioned earlier, it is possible that an agency might deny a FOIL request claiming exceptions under POL § 87(2) - two of which involve issues of confidentiality.  One exemption, POL § 87(2)(b), permits an agency to deny a FOIL request for records that would constitute an “unwarranted invasion of personal privacy” under POL § 89(2), if disclosed.  A court’s determination of this, however, rests on the balance between the competing interests of public access and an individual’s privacy, and “is measured by what would be offensive and objectionable to a reasonable person of ordinary sensibilities.”  32  This may be resolved by a redaction of the documents to prevent disclosure of confidential information.  33 

A second exemption, POL § 87(2)(a), exempts certain documents from disclosure based on state or federal statute.  34  Examples of such exempting authority include Social Services Law (SSL) § 136, which pertains to the protection of Department of Social Services (DSS) public welfare records, and 18 NYCRR § 357, which pertains to the confidential nature of DSS records.

While on the one hand this exemption seems to be absolute, case law holds, on the other hand, that the statutory confidentiality of DSS records is not always “sacrosanct,” and that they may be released in certain circumstances and under certain conditions.  35  Also, while disclosure of welfare records is restricted, it is not completely prohibited by federal or state statutes.  36  For example, SSL § 136(1) allows a bona fide news disseminating organization to inspect records if written assurances are made with respect to non-disclosure.  Similarly, 18 NYCRR § 357(3) allows the release of information if certain elements are satisfied under that subsection.  Also, it has been held that suppression of such documents according to statute should not exceed the purpose of the statute. 37 

Conclusion

Above are some of the basics of FOIL requests and guidance on some finer points that may surface.  Overall, a request pursuant to FOIL is an easy way to access information held by government and may promote governmental integrity when successfully wielded by legal service providers in the community.  It is something that should be embraced as a useful tool in practice, and hopefully this article will assist future FOIL endeavors.

Footnotes

1.  I have been privileged to work at Empire Justice Center as a Staff Attorney during my year-long deferral from Fried, Frank, Harris, Shriver & Jacobson LLP.
2.  POL § 84. 
3.  Federation of New York State Rifle & Pistol Clubs, Inc. v. New York City Police Department, 73 N.Y.2d 92, 95 (1989), (quoting In re Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979)); see also Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 578 (1986) (“The Freedom of Information Law expresses this State’s strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies.”).
4.  Id. at 95-96, citing POL § 84.
5.  Alderson v. N.Y. State Coll. of Agriculture & Life Sciences at Cornell Univ., 4 N.Y.3d 225, 230 (2005) (quoting In re Newsday, Inc. v. Sise, 71 N.Y.2d 146, 150 (1987), cert. denied 486 U.S. 1056 (1988)).
6.  Federation of New York State Rifle & Pistol Clubs, 73 N.Y.2d at 95 (citing In re Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 564 (1984), In re Fink, 47 N.Y.2d at 571, and In re Capital Newspapers v. Whalen, 69 N.Y.2d 246, 252 (1987)); see also Encore College Bookstores, Inc. v. Auxiliary Serv. Corp. of SUNY at Farmingdale, 87 N.Y.2d 410 (1995) (holding that FOIL is to be read liberally with its exemptions read narrowly); Buffalo News, Inc. v. Buffalo Enterprise Dev. Corp., 84 N.Y.2d 488 (1994) (same). 
7.  See Newsday, Inc. v. Empire State Development Corp., 98 N.Y.2d 359, 364 (2002).
8.  See Gannett Co. v. Rochester City School Dist., 179 Misc. 2d 502 (Monroe County 1998) (citing Gould v. New York City Police Dept., 89 N.Y.2d 267 (1996)), aff’d 267 A.D.2d 964 (4th Dep’t 1999). 
9.  See POL § 87(2).
10.  Capital Newspapers Div. of Hearst Corp., 67 N.Y.2d at 566; see also In re Hanig v. State of N.Y. Dept. of Motor Veh., 79 N.Y.2d 106, 109 (1992) (“[Any exemption is] to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption.”).
11.  For information on submitting FOIL requests to OTDA, visit http://www.otda.state.ny.us/main/legal/FOIL. For OCFS, visit http://www.ocfs.state.ny.us/main/faqs/foilfaq.asp.  Also, for general information, see the Committee on Open Government’s website at http://www.dos.state.ny.us/coog/freedomfaq.html#request.
12. See POL § 89(3)(a).
13.  Id. 
14.  POL § 89(4)(a).
15.  Id. 
16.  Id. 
17.  Id.  If you would like to send a courtesy copy to the Committee on Open Government, its address is: NYS Department of State, One Commerce Plaza, 99 Washington Avenue, Suite 650, Albany, NY 12231.
18.  Alderson v. N.Y. State Coll. of Agriculture & Life Sciences at Cornell Univ., 4 N.Y.3d 225 (2005).
19.  POL § 89(3)(a).
20.  Data Tree, LLC v. Romaine, 9 N.Y.3d 454 (2007). 
21.  Id.
22.  See POL § 89(3)(a).
23.  See also POL § 87(1)(c) (outlining the determination of actual costs associated with “reproducing a record”).
24.  Whitehead v. Morgenthau, 146 Misc. 2d 806 (Sup. Ct., New York County 1990).
25.  POL § 87(1)(c)(iv).
26.  N.Y. State Comm. Open Govt. AO 11638; N.Y. State Comm. Open Govt. AO 10959.
27.  5 U.S.C. § 552(a)(4)(A)(iii).
28.  Rizzo v. Tyler, 438 F. Supp. 895, 900 (S.D.N.Y. 1977) (citing S.2543, 93d Cong., 2d Sess. (1974)). 
29.  Id. (citing S. Conf. Rep. No. 1200, 93d Cong., 2d Sess., reprinted in (1974) U.S. Code Cong. & Admin. News, p. 6287). 
30.  Id. (citing 120 Cong. Rec. 17020 (1974) (remarks of Senator Kennedy)).
31.  This Advisory Opinion is available on the Empire Justice Center website at http://www.empirejustice.org/assets/pdf/issue-areas/public-benefits/freeman-5-27-10.pdf.
32.  Pennington v. Clark, 16 A.D.3d 1049, 1051 (4th Dep’t 2005); see also In re Hanig, 79 N.Y.2d at 112; Empire Realty Corp v. N.Y.S. Div. of Lottery, 230 A.D.2d 270, 273 (3d Dep’t 1997).
33.  Pennington, 16 A.D.3d 1049.
34.  See Short v. Bd. of Managers of Nassau County Med. Ctr., 57 N.Y.2d 399 (1982).
35.  See People v. McFadden, 178 Misc. 2d 343 (1998) (stating that DSS records may be released “upon court order after an in camera inspection”), aff’d 283 A.D.2d 1030 (4th Dep’t 2001); see also Downer v. Franklin County, 2003 WL 22319418 (N.D.N.Y. 2003) (“[C]onfidentiality is not absolute, and such public assistance records may be released in certain circumstances and under certain conditions.” (citing N.Y. Times Co. v. City of New York, 176 Misc. 2d 872 (Sup. Ct., New York County 1998))). 
36.  See W. v. U., 44 A.D.2d 727 (2d Dep’t 1974). 
37.  Paine v. Chick, 50 A.D.2d 686, 687 (3d Dep’t 1975).  It has been held that the purpose of SSL § 136 is to “preserve the dignity and self-respect of a recipient of welfare and to assure the integrity and efficiency of the administration of the program.” Early v. Nassau County, 98 A.D.2d 789, 790 (2d Dep’t 1983); see also Doe v. Greco, 62 A.D.2d 498 (3d Dep’t 1978) (“Confidentiality [under SSL § 136] is required . . . to prevent a recipient’s exposure to ‘exploitation or embarrassment.’”).