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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.

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." An agency is not required to create a new record or provide information in response to questions to comply with the law. However, the courts have held that an agency must provide records in the form requested if it has the ability to do so. For instance, if records are accessible on paper or on a computer tape or disk, the public may choose to obtain them either way.

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:

  1. are specifically exempted from disclosure by state or federal statute;
  2. would if disclosed result in an unwarranted invasion of personal privacy;
  3. would if disclosed impair present or imminent contract awards or collective bargaining negotiations;
  4. 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;
  5. 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;
  6. could if disclosed endanger the life or safety of any person;
  7. 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;
  8. are examination questions or answers that are requested prior to the final administration of such questions; or
  9. 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; or
  10. are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-a of the vehicle and traffic law.

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, such as advice, opinions or recommendations. 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 statistical or factual information, as well as the 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 and critical infrastructure information. 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 falling within these special provisions, 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 or other harm. A member of the public requesting records may challenge such 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 maintain the following records (section 87(3)):

  1. a record of the final vote of each member in every agency proceeding in which the member votes;
  2. a record setting forth the name, public office address, title and salary of every officer or employee of the agency; and
  3. reasonably detailed current list by subject matter of all records in possession of an agency, whether or not the records are accessible.

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.

     Public Officers Law § 87(3)(c) was amended effective Jan 2, 2009 to read that each agency shall maintain: "a reasonably detailed current list by subject matter of all records in the possession of the agency, whether or not available under this article. Each agency shall update its subject matter list annually, and the date of the most recent update shall be conspicuously indicated on the list. Each state agency as defined in subdivision four of this section that maintains a website shall post its current list on its website and such posting shall be linked to the website of the committee on open government. Any such agency that does not maintain a website shall arrange to have its list posted on the website of the committee on open government."

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's regulations and a model designed to enable agencies to easily comply are available on request and on the committee's website.

Designation of records access officer

     Under the regulations, each agency must appoint one or more persons as records access officer. The records access officer has the duty of coordinating an agency's response to public requests for records.

     The records access officer is responsible for responding to requests directly or ensuring that agency personnel keep the subject matter list up to date, assist you in identifying records sought, make the records promptly available or deny access, in writing, provide copies of records or permit you to make copies, certifying that a copy is a true copy and, if the records cannot be found, certify 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.

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)). Whether a request reasonably describes records often relates to the nature of an agency's filing or recordkeeping system. If records are kept alphabetically, a request for records involving an event occurring on a certain date might not reasonably describe the records. Locating the records in that situation might involve a search for the needle in the haystack, and an agency is not required to engage in that degree of effort. The responsibility of identifying and locating records sought rests to an extent upon the agency. If possible, you should supply dates, titles, file designations, or any other information that will help agency staff to locate requested records, and it may be worthwhile to find out how an agency keeps the records of your interest (i.e., alphabetically, chronologically or by location) so that a proper request can be made.

     The law also provides that agencies must accept requests and transmit records requested via email when they have the ability to do so. For additional guidance concerning email requests, see below.

     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, which must be reasonable in consideration of attendant circumstances, such as the volume or complexity of the request. The approximate date ordinarily cannot exceed twenty business days from the date of the acknowledgment of the receipt of a request. If it is known within five business days of receipt of the request that more than twenty business days will be needed to grant a request in whole or in part, the agency’s acknowledgment must explain the reason and provide a specific date within which it will grant access. Similarly, if the agency acknowledges the receipt of a request and provides an approximate date within twenty business days that cannot be met, it is required to inform the person requesting the record, indicating the reason for the delay, and provide a specific date when it will grant access. When a specific date beyond twenty business days is given, it must be reasonable in relation to the circumstances of the request.

     If the agency fails to abide by any of the requirements concerning the time within which it must respond to a request, the request is deemed denied, and the person seeking the records may appeal the denial.

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.    

     Public Officers Law § 87(1)(c) was amended Effective August 2008 to read that "(c) In determining the actual cost of reproducing a record, an agency may include only: i. an amount equal to the hourly salary attributed to the lowest paid agency employee who has the necessary skill required to prepare a copy of the requested record; ii. the actual cost of the storage devices or media provided to the person making the request in complying with such request; iii. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency's information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and iv. 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 the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee's time is needed, or if an outside professional service would be retained to prepare a copy of the record."

Denial of access and appeal

     Unless a denial of a request occurs due to a failure to respond in a timely manner, 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 determine appeals by the head or governing body of the agency. You may appeal within thirty days of a denial.

     Upon receipt of the appeal, the agency head, governing body or appeals officer has ten 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. A failure to determine an appeal within ten business days of its receipt is considered a denial of the appeal.

     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)).

     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.

Access to Legislative Records

Section 88 of the Freedom of Information Law applies only to the State Legislature and provides access to the following records in its possession:

  1. bills, fiscal notes, introducers' bill memoranda, resolutions and index records;
  2. messages received from the Governor or the other house of the Legislature, as well as home rule messages;
  3. legislative notification of the proposed adoption of rules by an agency;
  4. 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;
  5. 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;
  6. administrative staff manuals and instructions to staff that affect the public;
  7. final reports and formal opinions submitted to the Legislature;
  8. final reports or recommendations and minority or dissenting reports and opinions of members of committees, subcommittees, or commissions of the Legislature; and
  9. any other records made available by any other provision of law.
               In addition, each house of the Legislature must maintain and make available:
  1. a record of votes of each member in each session, committee and subcommittee meeting in which the member votes;
  2. a payroll record setting forth the name, public office address, title and salary of every officer or employee; and
  3. a current list, reasonably detailed, by subject matter of any record 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.

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 Letters

Requesting Records by E-mail

[This form language is optional but may enhance your use of the Freedom of Information Law. You may choose to utilize certain portions that are most applicable to your request. You may cut and paste the entire form into a new email, read all provisions, and delete and/or modify those that do not apply.]

[It has been suggested that agencies create an email address dedicated to the receipt of requests. It is recommended that you review the website of the agency maintaining the records that you seek in order to locate its email address and its records access officer.]

[The subject line of your request should be "FOIL Request".]

Dear Records Access Officer:

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

(2) 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.]:

(3) 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.].

(4) If all 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).

(5) 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.

(6) 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].

Requesting Records

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

          Re: Freedom of Information Law Request

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

Appeal A Denial

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:_______________ (describe the records that were denied to the extent possible).
     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, 41 State Street, Albany, New York 12231.

     Sincerely,

     Signature
     Name
     Address
     City, State, ZIP code


Sample Notice of Petition and Verified Petition pursuant to Article 78 to review a denial of a FOIL Request

Supreme Court of the State of New York

County of _____________

Petitioner,

                                       Petitioner,

                  vs.

R1, R2, and R3

                                       Respondents

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Notice of Petition

 

 

Index No.:  _____________

 

 

 

Petitioner designates ___________ County as the place of trial

 

The basis of venue is:

 

The County of ____________ is the location of the petitioner’s residence (CPLR § 503) and is where the material events otherwise took place (CPLR § 506(b))

 

Petitioner’s address:

                                123 Anystreet.

                                Anytown, New York 12345

 

 

Upon the annexed petition of _________________, verified _________________ [date], and the affidavit of _________________, sworn to _________________ [date], an application will be made to this Court (at IAS Part _________________) at the Courthouse, _________________ Street, _________________, New York, on _________________ [date], at _________________ A.M. (or P.M.) for a judgment, pursuant to CPLR Article 78 :

 

1.         annulling the final determination of the respondents in which they denied petitioners access to requested specified records;

2.         requiring respondents to make such records available to petitioners pursuant to Public Officers Law Article 6;

3.         ordering respondents to pay the reasonable attorney's fees and other litigation costs reasonably incurred by petitioners for this proceeding; and

4.         granting such other and further relief as the Court deems just, proper and equitable.

 

 

You are required to serve, at least five days prior to the return date, a verified answer and supporting affidavits, if any, together with a certified transcript of the record of the proceedings under consideration, if not previously filed with the Clerk of the Court.

 

 

DATED:     December 22, 2007
Buffalo, New York

_______________________
John Q. Public
Petitioner, Pro Se
123 Anystreet.

Anytown, New York 12345

716-123-4567


 

Supreme Court of the State of New York

County of __________

Petitioner,

                                       Petitioner,

                  vs.

R1, R2, and R3

                                       Respondents

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Verified Petition

 

 

Index No.:  __________________

 

 

Petitioner, P, as and for his/her/their petition against the Respondent(s) allege:

1.      This is a proceeding under CPLR Article 78 and Public Officers Law Article 6 (the New York State Freedom of Information Law) seeking a judgment ordering respondents to provide information requested by letter dated ___________ and compliance with Public Officers Law Article 7.

2.      Petitioner, P,  is a resident of the City/Town/Village of _____________, County of __________ and State of _______________.

3.      Respondent, R1, is an agency for purposes of the New York State Freedom of Information Law, Public Officers Law Article 6.

4.      Respondent, R2, is the Records Access Officer at R1 and is the person who, on behalf of R1, denied petitioners access to the information they requested.

5.      Respondent, R3, is the Records Appeals Officer for R1, and is the person who (partially) affirmed the denial of Respondent R2, for access to the information requested by the petitioner(s).

6.      On or about (date), Petitioner submitted a request to Respondent R1, for access to certain records pursuant to Public Officers Law Article 6. (See Exhibit “A”).

7.      The submitted request sought information regarding to(summarize request)

8.      By letter dated (date) R1 acknowledged the receipt of Petitioner’s request and advised that a determination on whether or not to grant the request would be made on or about (date) (See Exhibit “B”).

9.      On (date), Petitioner filed an appeal of the (date) denial of Respondent R2, pursuant to Public Officers Law § 89. (See Exhibit “C”).

10.  By letter dated (date), Respondent R3, partially affirmed the constructive denial to access to the information requested by petitioner. (See Exhibit “D”).

11.  Petitioners have exhausted their administrative remedies, and review by this Court is ripe and otherwise appropriate pursuant to, and in accordance with, CPLR Article 78 and Public Officers Law Article 6.

12.  Respondents' determination that the requested records be denied is arbitrary and capricious and constitutes an abuse of respondents' discretion.

13.  Petitioners are legally entitled to the records they requested in that they are agency records.

14.  The denials of petitioners' request by Respondents stated that the denials were based upon (specify case or exemption claimed).

15.  Petitioners' request is clearly does not fall into the exemption claimed (set forth reasons).

16.  As a result of the final determination of respondents, the petitioner(s) have been denied their right of access to agency records as guaranteed by Public Officers Law Article 6.

17.  The public records requested by petitioners from the respondents are of clearly significant interest to the general public.

18.  Respondents have withheld the requested records from petitioners despite the fact that they lacked a reasonable basis to do so.

19.  If petitioner prevails in this proceeding, and for the aforesaid reasons, it is appropriate pursuant to Public Officers Law § 89(4)(c) for the court to order an award of reasonable attorney's fees and other litigation costs reasonably incurred.

20.  No previous request has been made for the relief herein requested.

WHEREFORE, it is respectfully requested that this court make and enter a judgment:

(a) annulling the final determination of the respondents in which they denied petitioners access to requested specified records;

(b) requiring respondents to make such records available to petitioners pursuant to Public Officers Law Article 6;

(c) ordering respondents to pay the reasonable attorney's fees and other litigation costs reasonably incurred by petitioners for this proceeding; and

(d) granting such other and further relief as the Court deems just, proper and equitable.

 

 

DATED:     December 22, 2007
Buffalo, New York

_______________________
John Q. Public
Petitioner, Pro Se
123 Anystreet.

Anytown, New York 12345

716-123-4567

 

State of New York       )

County of Erie              )  ss:

City of Buffalo  )

 

I (name), am the Petitioner in the within proceeding.  I have read the foregoing petition and know the contents thereof.   The contents are true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true.

 

 

                                                                        ________________________________

                                                                                    (name)

Sworn to before me this

__ day of January, 2006

 

 

__________________________

Notary Public