New York Freedom of Information Law

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The Freedom of Information Law (FOIL) is a series of laws designed to guarantee that the public has access to public records of governmental bodies in New York. New York's first such law was passed in 1974. That law was repealed and replaced in 1977 with a significantly changed law. Important amendments to the law were made in 1982, 2005 and 2008.

An Open Meetings Law (OML) was enacted in 1976 that broadly asserts the right of the public in New York to "be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy".

The pre-amble to the 1977 FOIL law says, "The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government...The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality."[1]

[edit] Transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked New York #36 in the nation (tied with Utah) with an overall percentage of 47.30%. [2]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave New York 41 points out of a possible 100, a letter grade of "F", and a ranking of 37 out of the 50 states.[3]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked New York's law as the 29th worst in the country, giving it a letter grade of "D+".[4]

[edit] Changes in 2008

Several new provisions that modernize and clarify FOIL went into effect on August 7, 2008.[5].

The changes include limits on fees that can be charged individuals for electronic records, provisions regarding large requests, and for new records created from electronic information systems. A new subparagraph clarifies that access to records to ascertain the fairness of real property tax assessments is not an invasion of others' privacy.[6] When government agencies install new information management systems, they are now legally required to build systems that provide maximum public access.[7]

[edit] Features of FOIL

[edit] What records are covered?

  • Under FOIL, a "record" is defined as "any information kept, held, filed, produced, or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever."
  • In Capital Newspapers v. Whalen, a 1987 case, a New York court said that a document in the keeping of a government agency does not have to have a specifically governmental purpose in order to fall under FOIL. The court said that looking at the legislative history of FOIL, they did not see a "content-based limitation in defining the term 'record'... Moreover...permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL would be inconsistent with [the statute]."
  • Documents are still covered by the act if a promise of confidentiality has been given. In Washington Post v. Insurance Department, a 1984 case, a court said that a "promise of confidentiality...is irrelevant to whether the requested documents fit within the Legislature's definition of records...Nor is it relevant [whether] the documents originated outside the government."
  • Documents that are in temporary possession of someone else or some other agency are still covered by the act, and must be furnished to a requestor by the agency that is or should be responsible for the documents.
  • Documents that originated outside the government, but which have come into the possession of the government, are covered by the law.
  • Agencies that are covered by FOIL are required prepare a "reasonably detailed current list by subject matter" of all records in their possession.

[edit] What agencies are covered?

  • The law requires disclosure of all non-exempt documents for "agencies". An "agency" is:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
  • New York courts have held that records of local chief executives (mayors, county supervisors, etc.) are subject to disclosure under the law.
  • The records of the state legislature and the state's courts are often available under laws other than FOIL.

[edit] Who can request records?

See also List of who can make public record requests by state

Anyone may request public documents in New York. The "public, individually and collectively and represented by a free press, should have access to the records of government". [8]

[edit] Is the requestor's purpose relevant?

The reason a requestor may have for asking for copies of public documents is generally not relevant. In a 1995 case, New York News v. Staten Island, a judge wrote, "FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose..." In a 1999 case, Daily Gazette v. Schenectady, a judge wrote, "An agency's inquiry into, or reliance upon the status and motive of a FOIL applicant would be administratively infeasible, and its intrusiveness would conflict with the remedial purposes of FOIL."

However, New York courts have considered the requestor's motives to be relevant in several cases where the motive of the document requestor was to obtain documents relative to pending litigation. In Newsday v. State Department of Transportation, a 2005 case, a judge wrote, "Where a FOIL request for materials subject to [23 U.S.C. § 409] is made by a tort plaintiff, or by someone acting on such a plaintiff's behalf, perhaps denial of the request will be justified".

In Fink v. Lefkowitz, a 1979 case, access to portions of an office manual of the Special Prosecutor for Nursing Homes was denied under FOIL's "law enforcement" exemption, with the judge writing, "the purpose of the Freedom of Information Law is not to enable persons to use agency records to frustrate pending or threatened investigations nor to use that information to construct a defense to impede a prosecution".

FOIL also allows agencies to deny requests for lists if the lists that would be obtained would be used for commercial or fundraising purposes.[9]

[edit] How can records be used?

FOIL places no restrictions on how public records may be used, once they have been obtained.[10]

[edit] Fees for records

The FOIL law says:

  • The fee for copies is not to exceed $.25 per photocopy, if the copies are on paper that is 9x14 inches in dimension or less
  • For other copies, the fee is not to exceed the agency's actual reproduction costs.
  • In cases where a state statute sets a specific fee for a specific type of record, that statute governs what can be charged.
  • Fees for copies of audio and audio-visual records are not to exceed the actual costs for reproduction, unless allowed by law. Agencies cannot charge for staff time involved in reproduction, according to a 1978 court ruling.[11]

[edit] No search fees

Main article: Sunshine laws and search fees

FOIL does not allow agencies to charge for the time spent searching for the requested records.

[edit] Fee waivers

Some states allow records custodians to waive fees when the request is considered to be of public interest and value. New York is not one of those states. A court ruled in 1990 that fee waivers could not be given to inmates or impoverished people.[12]

[edit] Open meetings

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it." [13]

[edit] Committee on Open Government

The Committee on Open Government was formed by statute to oversee FOIL and advise on transparency questions.

[edit] Relevant legal cases

See also: Court cases with an impact on state FOIA

[edit] See also

[edit] External links

[edit] References

  1. ↑ Freedom of Information Law section 84
  2. ↑ Integrity Index available for download here
  3. ↑ Graded state responsiveness to FOI requests, 2007
  4. ↑ Freedom of Information in the USA, 2002
  5. ↑ New Provisions Modernize and Clarify FOIL
  6. ↑ Access to government
  7. ↑ N.Y. touches up its open government laws
  8. ↑ NY Public Officers Law § 84
  9. ↑ Open Government Guide to FOIL, "Purpose of Request"
  10. ↑ Open Government Guide to FOIL
  11. ↑ Zaleski v. Hicksville Union Free School District
  12. ↑ Whitehead v. Morgenthau
  13. ↑ Open Meetings Law section 100
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