New York Freedom of Information Act
What is the New York Freedom of Information Act?
The Freedom of Information Act (FOIA) allows members of the public to request and have access to information/records held by government agencies. Under the FOIA, government agencies can only withhold information whose disclosure is exempted from public disclosure, prohibited by law, or would harm the public interest. The FOIA is essential to ensure transparency in governance and make government at all levels accountable to the general public.
The New York FOIA, known as the New York Freedom of Information Law (FOIL), was enacted in 1974. It was passed to ensure public access to records in the custody of New York's government agencies. The FOIL requires all state and local government agencies to make government records, to which the public can have unhindered access, available for inspection and copying. Under the FOIL, a requester is not required to provide a reason for requesting a record or indicate the intended use of such a record. However, they must include the purpose of a request if it requires a list of names and residential addresses. In this case, the agency may request a certification that the requested record (list) will not be used for fund solicitation.
Agencies subject to the New York FOIL include every state or municipal board, division, department, committee, commission, bureau, and council. Others include public corporations, public authorities, and governmental entities performing governmental functions. While the state legislature is subject to the FOIL, it is treated differently from other government bodies. Generally, courts are not subject to the FOIL. However, they must disclose records under other provisions of law. The New York Committee on Open Government oversees the implementation of the FOIL.
The FOIL has witnessed several amendments since enacted in 1974. It was repealed and reenacted in 1977 with notable changes. While the 1977 revision of the FOIL remains predominant, other modifications have also occurred, but no significant changes. In 1982, the New York Legislature included a provision awarding attorneys' fees to record requesters in certain circumstances. Another modification occurred in 1989 when the legislature added a clause to the FOIL, making it a violation for anyone to suppress or destroy any record deliberately in a bid to prevent public inspection. The 2005 modifications advised government agencies of the precise time frames to respond to public record requests. Other amendments took place in 2006 and 2008, making provisions for public bodies to accept email requests and advancement in information technology to provide access to information electronically. The most recent amendment of the New York FOIL occurred in 2017 vis-a-vis attorney's fees. It withdraws judicial discretion and authorizes the award of attorney's fees against any public body that denies a FOIL request without reasonable basis.
What is Covered Under the New York Freedom of Information Act?
Under the Freedom of Information Law (FOIL), public agencies can only provide the public with documents or records they already have in their custody. They are not required to create new public records or compile any information into records that they did not initially maintain. According to the FOIL, a record is any information generated, held, reproduced, or filed by, for, or with a public body or the New York Legislature. Records kept by New York government agencies and covered by the FOIL may be in any physical form such as papers, reports, memoranda, books, files, and manuals. Others include drawings, photos, codes, microfilms, folders, computer discs or tapes, pamphlets, letters, statements, and maps.
Electronic records covered by the FOIL include telephone call logs, metadata, databases, email, and text messages. In New York, public agencies provide a detailed list of records, by subject matter, maintained by them, whether or not subject to disclosure under the FOIL on their websites. The New York State government also provides an open data resource on several subject matters.
What Records are Exempt from the Freedom of Information Act in New York?
According to Section 87(2) of the New York Freedom of Information Law (FOIL), the following records/information are not subject to the state's FOIA:
- Trade secrets, records submitted to a public body by a business enterprise or financial information, which, if disclosed, would adversely affect the enterprise's competitive position
- Any information that would constitute a needless invasion of a person's privacy if disclosed
- All records that are exempted from disclosure by state or federal law
- Information/records compiled for law enforcement purposes, which, if revealed, would cause the following:
- Disclose confidential information associated with criminal investigations or identify the source of such information
- Interfere with judicial proceedings or investigations by law enforcement
- Disclose the procedures and techniques used by law enforcement for criminal investigations
- Deny a person of a right to a fair trial
- Examination questions or answers requested before the final administration of such exam questions
- Any record/information, which, if disclosed, could jeopardize the safety of any individual
- Any information/record, which, if disclosed, may jeopardize an agency's electronic information systems and infrastructures
- Videotapes, photographs, microphotographs, or other recorded images compiled under the authority of the New York vehicle and traffic law
- Intra- or inter-agency records which are not factual, final agency's policies, or instructions to agency's staff that affect the general public
How Do I File a New York Freedom of Information Act Request?
To file a New York Freedom of Information Law (FOIL) request, an individual must first identify the relevant agency keeping the information or record of interest. Afterward, they should find the right person or contact within that agency to whom they will direct their request. For instance, anyone who wishes to obtain a record from the New York Department of Corrections and Community Supervision can submit a FOIL request by email, mail, or in-person to/at:
FOIL Unit, Office of Counsel
NYS Department of Corrections and Community Supervision
1220 Washington Avenue
Albany, NY 12226
If a record or information is in the custody of the New York Division of Criminal Justice Services, submit a FOIL request by email, mail, or in-person to/at:
Records Access Officer
NYS Division of Criminal Justice Services
Alfred E. Smith Building
80 South Swan Street
Albany, NY 12210
The New York State government provides a sample request for records by email. If in doubt of the contact person at a government agency, send the request to the agency's head or use the Open FOIL NY Resource Center provided by the New York State government. The resource center contains the contact information of agency records access officers of most government agencies in the state.
Alternatively, a person can file a New York FOIL request with more than 50 New York State executive agencies using the Open FOIL NY Online Form. The form allows requesters to select multiple agencies in a single FOIL request. Individuals who opt to use the online form must enter their contact information and provide detailed information about the records they are requesting. They may also attach documents to support their FOIL requests and choose the preferred FOIL report format.
What is the Cost of a Freedom of Information Act Request in New York?
An agency may not have a cause to charge for a record requested to be transmitted electronically, especially if it maintains an electronic copy of such a record. This is as stipulated in Section 87(1)(b) and (c) of the New York Freedom of Information Law (FOIL). However, the agency can charge the actual cost of reproducing a record if someone requests a large volume of copies of an electronic document. Additionally, an agency may charge for an employee's time where it takes more than 2 hours to generate and prepare an electronic record.
Per Section 87(1)(b)(ii) of the FOIL, a public body may charge up to $0.25 (25 cents) per copy for copying paper records up to 9"x14". They will also take postal charges if a requester chooses to have a document sent by mail. An agency can charge a requester the actual cost of making copies of records larger than 9"x14". Although not obliged to do so under law, some agencies will freely waive record copying fees if a request is in the public interest.
How Long Does it Take to Respond to a Freedom of Information Act Request in New York?
According to Section 89(3)(a) of the FOIL, an agency has five working days from when it receives a FOIL request to grant or deny it, in part or whole. This also applies to requests sent by email, which are deemed to have been received during normal business hours on the first business day. If the agency requires more time before a requested record is ready, it must acknowledge receiving such a request in writing. Such an acknowledgment must state the approximate date the agency will respond and make the record available. Typically, this should be within 20 additional working days.
Section 89(4)(a) of the New York FOIL permits a person to appeal a record request if an agency fails to respond within five working days of receiving the request. The requester must appeal to the chief executive of the agency or a person designated by the agency to determine appeals within 30 days of the agency's failure to respond. Typically, an agency is expected to respond to an appeal within 10 working days of receiving an appeal. Per Section 89(4)(b) of the FOIL, they are required to either explain why they will further deny a request in writing or make the records available to the requester. Failure to respond to an appeal within 10 working days is a denial of that appeal, and a requester may initiate legal action to contest the denial of access.