Using the New York State Freedom of Information Law

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1 Using the New York State Freedom of Information Law What part of government is covered by FOIL? What information can be obtained under FOIL? o Agency Records o Legislative Records Agency Records Access Officers and Records Access Appeals Officers How do I make a request? o Determining where to write o Describing the Information You Want o Writing the Letter o The Agency's Response o Making an Appeal o Taking it Further - Judicial Review Sample FOIL request letter Sample FOIL appeal letter You can obtain the records of NY state and local government agencies (including the NYS Department of Labor and its Public Employee Safety and Health bureau), by using the New York State Freedom of Information Law. This page explains how. The New York State Freedom of Information Law (FOIL) establishes the right of the public to obtain information from agencies of New York State government and its local entities, including New York City. Modeled after the federal Freedom of Information Act of 1974 (FOIA, which applies to information controlled by the federal government), New York State FOIL creates a specific procedure through which members of the general public can exercise their right to see and copy most state and local government records in New York State. According to FOIL, "government is the public's business and the public, individually and collectively and represented by a free press, should have access to the records of government". FOIL is intended to give them that access. To see the complete text of the law, click

2 here. This page is designed to help individuals use the law as it relates specifically to New York City, but it can be used for records of any government agency in the state, except references to NYC regulations should be omitted. What part of government is covered by FOIL? FOIL applies to any agency, office, or department of New York State and its political subdivisions, such as cities, counties and towns (for example, the New York City Office of the Mayor, the NYC Department of Health, or the Bronx County District Attorney). It applies to any administrative board, bureau, committee, or commission (for example, the New York City Housing Authority, the Landmarks Preservation Commission or the City Council) and quasigovernmental corporations (for example, the Health and Hospitals Corporation or the Port Authority). FOIL includes a separate set of rules concerning public access to the records of the state legislature. FOIL does not apply to court records. What information can be obtained under FOIL? A. Agency Records The law refers to all "records" of an agency. Records consist of any information kept, filed, or reproduced by or for an agency, in any physical form. A record may be a document, file, book, photograph, drawing, computer disk or tape. An agency is not required to create a record if it doesn't already exist at the time a request is made. However, all agencies are required to maintain three specific records in addition to all others: 1. A record of the final vote of each member in every agency proceeding in which the member votes; 2. A record stating the name, public office address, title, and salary

3 of every officer or employee of the agency; 3. A reasonably detailed current list, by subject matter, of all records in the possession of the agency, whether or not available under FOIL. All agency records must be released to a requestor unless they fall under one of the ten specific exemptions stated in the law. If requested information falls under one of the ten exemptions, the agency may deny the requester access to it. Even if a record falls under one of the ten exemptions, an agency may release it, if it chooses to do so. The ten categories of information that may be withheld from disclosure: 1. If it is specifically exempt from disclosure under another state or federal law. 2. If disclosure would be an undue invasion of personal privacy. The law specifies what would be an invasion of privacy, but states that other matters may also be covered: a) Disclosure of employment, medical, or credit histories or personal references of applicants for employment; b) Disclosure of items involving the medical or personal records of a client or patient in a medical facility; c) Sale or release of lists of names and addresses, if such lists would to be used for commercial or fund-raising purposes; d) Disclosure of information of a personal nature when it would result in economic or personal hardship to the subject, and such information is not relevant to the work of the agency maintaining it; e) Disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency; However, the release of records containing such information will not be considered an invasion of privacy when identifying details are deleted, the person to whom the record refers gives written consent, or the records pertain solely to the person requesting them. 3. If disclosed, it would interfere with present or imminent contract

4 awards or collective bargaining negotiations. 4. If it constitutes trade secrets and disclosure would cause substantial injury to the competitive position of a company. Anyone who submits information to any state or city agency may request that the information be exempt from FOIL because it is a trade secret. 5. If it has been compiled for law enforcement purposes and: a) Concerns a current investigation or judicial proceeding; b) Would affect a person's right to fair trial; c) Identifies the source of confidential information relating to a criminal investigation; d) Reveals criminal investigative techniques or procedures. 6. If it would endanger the life or safety of any person. 7. If it is inter-agency or intra-agency material that is not: a) Statistical or factual data tabulations; b) Instructions to staff that affect the public; c) Final agency policy decisions; d) External audits; This provision is meant to encourage open exchange among policymakers, but does not authorize the agency to refuse to disclose any information under the guise of being an internal memo. 8. If they are test questions requested prior to the administration of the exam. 9. If it is computer access codes. 10. If it is a image recorded by an automatic "red-light" camera. (This exception will expire at the end of 1998.) In general, the exemptions are concerned with the effects disclosure of information would have, and look to protect privacy and mitigate harm. B. Legislative Records FOIL includes a section relating to state legislative records. The law provides access to the following records of the New York State

5 Legislature: 1. Bills and any amendments to them, fiscal notes, introducers' bill memoranda, resolutions, and index records; 2. Messages received from the Governor or the other house of the legislature and home rule messages; 3. Legislative notification of the proposed adoption of rules by an agency; 4. Transcripts or minutes of all public sessions, including committees, subcommittees, and public hearings, with records of attendance and any votes taken; 5. Audits and factual or statistical tabulations and analysis of material otherwise available for public inspection under FOIL; 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 dissenting reports and opinions, of committees or commissions of the Legislature. 9. Any other records or files required by law to be made available to the public. In addition, both houses of the New York State Legislature, both the Senate and the Assembly, are required to make available three additional records: 1. A record of votes of each member in each session, committee, and subcommittee meeting in which the member votes; 2. A payroll record stating the name, public office address, title, and salary of every officer or employee; 3. A reasonably detailed current list, by subject matter, of available records. The process for requesting records of the State Legislature is the same as under the rest of the law, which will be described in the

6 following sections. Requests should be directed to the public information officers of each house. Specifics can be found on the Resource List. Agency Records Access Officers and Records Access Appeals Officers Under the "Uniform Rules and Regulations for All City Agencies Pertaining to the Administration of the Freedom of Information Law" (New York City Rules and Regulations, Title 43, Chapter 1) the state law is adapted to New York City. The New York City rules require that each agency designate a Records Access Officer to handle Freedom of Information requests. FOIL requests should be directed to an agency's Records Access Officer. The duties of the Records Access Officer include: 1. Maintaining a reasonably detailed current list of all records in the possession of the agency, updated not less than twice a year. 2. Assisting members of the public in identifying requested records and either making them available or denying access to them in whole or in part, with a written statement of the grounds for denial of access. 3. Keeping a record of each request and when it is received as well as each letter sent by the agency granting, denying, or acknowledging a request. Each agency must also make available a list of the times and places where records are available for inspection. For New York City agencies, this list is published in the City Record. How do I make a request? Step 1 - Determining where to write If you are uncertain about which agency may have the information you seek, check descriptions of the various agencies in sources like The Green Book. Once you have narrowed the possibilities, you might want to call the Records Access Officer of the agency for more information. For a list of city agencies and the name, address,

7 and phone number of their Records Access Officers, see the Resource List. It may be helpful to use the name of the Records Access Officer in the address of a FOIL request, but it is not necessary. If a request is addressed to an agency's "Records Access Officer", the agency will be able to direct the request to the right party within the office. Step 2 - Describing the Information You Want The Freedom of Information Law requires that a request must "reasonably describe" in writing what records are being requested. The description must be sufficiently specific so that an employee who is familiar with an agency's records system will be able to locate the records within a reasonable amount of time and effort. The more precise and accurate the request, the more likely you are to get a prompt and complete response, with lower fees. Helpful hints: - Try to limit your request to what you really want. If you simply ask for "all files relating to" a particular subject, you may give the agency an excuse to delay its response and needlessly run up costs. - If you want material released to you in order of specific priorities, inform the agency. - If there are published accounts - such as newspaper articles or other reports concerning the material requested, these should be cited and even enclosed in the request if possible. - If you know that portions of the requested records have already been released, point this out in your letter. Give information, if possible, to identify that release (date, original requester). - If you know the title or date of a document, who wrote it, the division of the agency from which it originated, such information should be included. For your own personal files: - A request for personal records should contain as much specific identifying material as possible, as well as the nature of your relationship with the agency if, for example, you were an employee

8 or a participant of an agency program during a particular period. - If your name has been changed, remember to let the agency know. Step 3 - Writing the Letter The request letter should be addressed to the Records Access Officer of the agency. - You should begin by stating that you are making a request under the provisions of the New York Freedom of Information Law. - Make it clear that you know your right to obtain information and to appeal if the request is denied. - If possible, include a statement concerning the cost of responding to the request. An agency may not charge for inspection, certification, or search for records, but if you want copies of the records an agency may charge up to 25 cents a page. You can save time by informing the agency that you only wish to come and inspect the documents or that you will pay up to a certain sum (for example, $10.00) for copies, and wish to be consulted if the charge for copies will be more than the amount you specify. - If you are writing for your personal files, you should have your signature notarized by a notary public or a commissioner of deeds. - You should keep a copy of your request letter and any other written material concerning the request, including any responses from the agency. See sample letters below. Step 4 - The Agency's Response The Records Access Officer is required by law to respond to the request within five business days of the receipt of the request. They may respond in several ways: 1. If the agency decides that the request should be granted, the Records Access Officer must notify the requester in writing, stating

9 the time and place at which the records may be inspected and the procedure and fees for copying of records. 2. If the agency decides that the requested records are exempt from disclosure under the terms of FOIL and should be fully or partially withheld from disclosure, the Records Access Officer must notify the requester in writing, stating the grounds for the denial. This letter must inform the requester of their right to appeal the decision and state the name of the person or body designated to hear such appeals. If a requested record contains some information that is exempt from disclosure and some information that is not exempt from disclosure, the agency is required to release the non-exempt information after editing out (known as redacting) the exempt information. 3. If a request doesn't adequately describe the records sought, the Records Access Officer must notify the requester in writing that the request was denied, stating the reason why and offering to assist them in reformulating the request in a way that will enable the agency to identify the records sought. 4. If a requested record doesn't exist, has been destroyed or is in the control of another agency, the Records Access Officer shall so notify the requester in writing, stating which agency to address the request to if the records are believed to be in another office. Bear in mind that some agencies simply have disorganized or inadequate filing systems and that in some instances officials have later turned up entire records systems that they initially thought did not exist. An agency statement that a record does not exist might trigger some additional research on your part, as well. Can you find news reports, hearings, etc. where they are described more fully? It is possible that the agency will respond in one of these ways within the five days. However, provisions in the New York City Rules and Regulations allow a delay in the response time on the part of the agency under "unusual circumstances." The agency must still acknowledge that they received the request, in writing, within the five business days. In that letter, they must state the approximate date, within ten business days of the acknowledgement, by which a decision will be made about the request. "Unusual circumstances" means: - The need to search for or request records from a separate office or

10 facility; - The need to search for and examine a voluminous amount of separate records; - The need for consultation with another agency or department having a substantial interest in the decision; - Any other circumstances in which the agency is unable, acting in good faith, to comply with the time limit. If the agency then does not make a decision within ten days of the acknowledgement, the requester may deem the request to have been denied, and thus may file an appeal. Note that this rule applies only to to City, not to State, agencies. Step 5: Making an Appeal If a Freedom of Information request is denied (or if the agency does not respond within the time frame explained above), the requester has the right to file a written appeal within thirty days of the receipt of the denial to the appeals officer of the agency. An appeal should include the names of the Records Access Officer who denied the request, the dates of the request and denial, the records which were the subject of the request, and your name and address. It is useful, but not mandatory, to enclose copies of your request letter and any response you have received from the agency. Make it clear that you know your rights and expect a response within the ten days the law requires. Be sure not to miss the 30-day deadline. - You should keep a copy of your appeal letter and any other written material concerning the appeal, including any responses from the agency. Sending an appeal letter may be more effective than might seem likely, because it brings the matter to the attention of another agency official (the access officer and the appeals officer must be different people), and it puts the agency and the City's Law Department on notice that you are one step closer to filing a lawsuit. See sample appeal letter below.

11 The agency is required to respond in writing to an appeal letter within ten business days of receipt of the appeal. That letter must either fully explain the reason that the appeal is denied, or provide access to the record sought. If the appeal is denied, the letter must inform the requester that judicial review of the denial may be obtained in a proceeding under Article 78 of the Civil Practice Law and Rules within four months after the appeal denial. If the agency fails to decide your appeal in a timely fashion, you may deem the appeal denied. Step 6 - Taking it Further - Judicial Review If, after reading the agency's explanations for denying your request and the appeal, you believe that the records you have requested are not exempt from disclosure, you might want to file a lawsuit. If you think a lawsuit is possible, you should consult with a lawyer who is familiar with the laws governing access to public records. If you are considering the route, be careful not to miss the 4-month deadline for filing your papers in court. Sample FOIL request letter Square brackets -- [ ] -- indicate words that must be replaced with the information that is called for. Parentheses -- ( ) -- indicate words that are optional or wording that requires a choice depending on your particular request [your name and address] [date] [(name)] Records Access Officer [agency name] [address] Dear --: In accordance with the provisions of the New York State Freedom of

12 Information Law, please provide me with (the opportunity to examine and copy) or (copies of) all the records described below. (This request is limited to records produced on or after [date]): [description of records] Please place missing documents on "special locate" and notify me that you have done so. I wish to make it clear that we want all records identifiable with this request, even though reports on those records or copies of the records have been sent to other offices and even though there may be apparent duplication between the records in more than one office. If documents are denied in part, please specify the exemptions claimed for each page or passage. For documents withheld in their entirety please state, in addition, the date of and the number of pages in each document. Please advise me of any destruction of records and include the date of and authority for such destruction. I want to see complete sets of records, but if complete sets of records are not extant, then we wish to see any portion of the requested records that exist. (Time is of the essence in this matter; if some of the requested records are more readily available than others, I want to see any available records at the earliest opportunity. Please do not delay making any of the requested records available because other requested records are not yet found, redacted, or otherwise prepared for release.) I expect an acknowledgement of this request within five working days, as provided in the "Uniform Rules and Regulations for All City Agencies Pertaining to the Administration of the Freedom of Information Law," Title 43, Rules of the City of New York, Ch. 1. I expect to you to release the requested records within ten working days of your acknowledgement, as provided in the Rules. I will deem this request to have been denied if you do not comply with the Rules.

13 (If you have any questions about this request, please contact me by telephone (or fax). My telephone number is [ ]; (my fax number is [ )].) I look forward to hearing from you soon. Thanks in advance for your cooperation and assistance. Sincerely, [your signature] [your name] (If you are requesting personal records concerning yourself, you should have your signature notarized.) Sample FOIL appeal letter Square brackets -- [ ] -- indicate words that must be replaced with the information that is called for. Parentheses -- ( ) -- indicate words that are optional or wording that requires a choice depending on your particular request [your name and address] [date] [(name)] Records Access Appeals Officer [agency name] [address] Dear --: This is an appeal in accordance with the provisions of the New York State Freedom of Information Law. The original request of [date of your request letter] and addressed to [person's name and/or title] sought disclosure of [description of records]. (A letter of [date] from [name] asserts that, based on Freedom of Information Law exemptions, (all or portions) of the requested records have been (withheld or redacted). The nature of the claimed

14 exemption(s) lead(s) to the conclusion that the records were unlawfully withheld. [Explain why the exemptions do not apply to the requested records.]) OR (A letter of [date] from [name] acknowledges but does not deny my request. At least ten business days have elapsed since that letter was written, but my request has not been granted or denied. In accordance with the Rules and Regulations of the City of New York I deem my request to have been denied.) OR (At least 10 business days have elapsed since I made my request. I have received no response from [the agency]. In accordance with the Rules and Regulations of the City of New York I deem my request to have been denied.) The above reasons mandate release of the requested documents. I will expect to receive a reply to this letter with 10 business days. (If you have any questions about this appeal, please contact me by telephone (or fax). My telephone number is [ ]; (my fax number is [ )].) Sincerely, [your signature] [your name] The This page was last updated on line just below reflects the date on which this page was transferred to this redesigned website. The information in this page (as opposed to the design) was last updated on April 19, 2002.