Overview

• Vastly different experience between city and rest of state
• Independent appeal board better in theory than practice
• Competition between agencies offers opportunity for leverage

Although technically governed by one state public records law, functionally New York has two – the FOIL of New York City and the FOIL of everywhere else in the state. Some city agencies – like the NYPD, for example – can receive thousands of requests a year, and have their own unique (and purposely frustrating) ways of handling those requests. Conversely, some entire towns may receive a handful or even none at all, and are a loss on how to do basic requests. This swings both ways, however – a city agency that argues that an email search will be unduly burdensome would be hard-pressed to explain why a village clerk managed to do so without any difficulty.

FOIL appeals in New York are handled by an independent oversight board – the Committee on Open Government. In theory, this would provide an additional layer of transparency, but in practice, the experience is only marginally different. Other than in cases where the agency has clearly violated the law by blatantly ignoring or delaying a request, the board defers to the agency’s discretion when it comes to exemptions – especially security exemptions – even when the application is overly broad. In the rare cases where these appeals have been successful – usually due to an earlier lawsuit – there’s nothing to stop the agency from resorting to exorbitant (and perfectly legal) fees.

As the agency that receives the largest volume of requests in the most prolific non-national jurisdiction, the NYPD deserve special note – though ostensibly governed by the same laws as any other New York agency, the NYPD operate almost independently, with their own often arbitrary rules. Requests can only be made in writing (ie, mailed) and despite being a municiple-level agency, they’ve fought, and won, for the right to use the infamous “neither confirm nor deny” security exemption. So, to amend what was said earlier, there’s really three laws in the State – New York City’s, the rest of the State, and the NYPD.

The Law

• Acknowledgement within 5 days, response not longer than 20 days after.
• Applies to the executive branch, certain legislative records, and state agencies.
• No residency requirement.
• Appeals may be filed within 30 days.

Supplemental

Definition of public records - N.Y. Pub. Off. Law § 86)

The Details

Can you submit a request if you’re not a resident?

Yes. New York law currently has no provision dictating a residency requirement.

To whom does this apply?

Executive?

Yes.

Judicial?

No. However, court records held by state agencies become public records, and other laws permit the release of court records.

Legislative?

Yes.

Is there a designated records custodian?

Each agency should have procedures regarding “the persons from whom such records may be obtained.”

“(b) Each agency shall promulgate rules and regulations, in conformity with this article and applicable rules and regulations promulgated pursuant to the provisions of paragraph (a) of this subdivision, and pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to: i. the times and places such records are available; ii. the persons from whom such records may be obtained; and iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute.” N.Y. Pub. Off. Law Ch. 47 Art. 6 § 87(b)

Who is exempted?

The law doesn’t apply to the judiciary, which is subject to N.Y. Jud. Law § 255.

How can requests be submitted?

In-person?

Yes.

Verbally?

No. The law does not cover oral requests.

By mail?

Yes.

By email?

It depends on the agency’s policies.

How long do they have to respond?

Within five days, requests must receive a denial, response, or acknowledgement containing an estimated completion date, which should be within twenty days, and, if not, an explanation for why not.

“3. (a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section.“ N.Y. Pub. Off. Law Ch. 47 Art. 6 § 87(b)

Are there provisions regarding the extension of response times?

Yes.

“If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.” N.Y. Pub. Off. Law Ch. 47 Art. 6 § 88(3a)

Does the agency have to give you a tracking number or estimated date of completion?

Yes, when acknowledging a request, the agency must provide an approximate date on which a records are expected to be made available.

(a) Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with subdivision five of this section. N.Y. Pub. Off. Law Ch. 47 Art. 6 § 88(3a)

Can they ask why you ask?

No. There is no provision allowing that the motivation behind a request can be made a factor in release, and multiple cases have determined that the purpose of the request is basically irrelevant.

What enforcement?

One may appeal or sue.

“4. (a) Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. ” N.Y. Pub. Off. Law Ch. 47 Art. 6 § 87(c)

Fees?

Fees may cover search time after the first two hours and copying costs as appropriate.

“(b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” N.Y. Pub. Off. Law Ch. 47 Art. 6 § 87(c)

Are there fee waivers for media requests or those made in the public interest?

There are no provisions regarding fee waivers, though individuals may appeal fees in the same manner as other appeals are submitted.

Attorney’s fees - Can you win them?

Yes.

“(c) The court in such a proceeding may assess, against such agency involved, reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when: i. the agency had no reasonable basis for denying access; or ii. the agency failed to respond to a request or appeal within the statutory time. ” N.Y. Pub. Off. Law Ch. 47 Art. 6 § 89(4c)

Exemptions and Appeals

What exemptions exist?

Most exemptions are specific.

Are they mandatory or discretionary?

Exemptions may be applied at the discretion of the agency.

“2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: (a) are specifically exempted from disclosure by state or federal statute; ” N.Y. Pub. Off. Law Ch. 47 Art. 6 § 87(2)

Do they have to tell you why a portion or pages were redacted or withheld?

Yes, and elements that are not specifically exempt should be provided.

How much time do you have to appeal?

30 days.

To whom does the appeal go?

Appeals should be sent to the head of the entity that denied the request.

1. (a) Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.

Can you appeal a delay?

Yes.

Do agencies have to tell you where to send your appeal?

Appeals should be sent to the head of the entity that denied the request.

What if your appeal is denied?

You can take the issue to court.

Where else can you turn?

The Committee on Open Government.

Are all appeals kept officially?

Yes. Agencies are supposed to send a copy of appeals to the Committee on Open Government.

Resources

Organizations

The following organizations offer resources for those seeking public records in New York.

• New York Committee on Open Government
• SeeThroughNY

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterik have indicated a willingness to offer pro bono services on a case by case basis.

• Greenberg Traurig, LLP
• Cory Morris

Successful appeals

• Committee on Open Government FOIL Opinions.

News Stories on Public Records Laws in the State

• De Blasio’s screening of public-record requests raises transparency concerns
• FOIL’d: The pursuit of open records in New York

Submit a new link

Blogs and feeds primarily focused on public records in New York

• Committee On Open Government News

Public Records Guide and Advice

• Committee on Open Government’s Your Right To Know Guide
• RCFP’s Open Government Guide
• DMLP Access to Public Records in New York
• Reclaim New York’s How to Send a FOIL

Newsletters

We do not yet know of any FOIL newsletters in New York. Know of one we missed? Let us know!

Big FOIA wins

Have a public records success story? Let us know!