In her inaugural address, Governor Kathy Hochul pledged to work with her legal counsel in quickly fulfilling record requests filed under the state’s Freedom of Information Law, which mandates the release of government records.
Hochul was light on details, particularly how to enforce compliance, but said she wants responses to happen “as fast as possible.”
For journalists, advocacy groups, attorneys, and highly inquisitive New Yorkers, FOIL can help shed light on the actions of the government. A successful FOIL reply can lead to answers about the treatment of people in state custody, a clearer number of nursing home deaths, or reveal how lawmakers attempt to stymie any political crisis.
However, the process has long been a frustrating one. Receiving an answer to a FOIL request frequently takes months, if not years, and is often so highly redacted that it is not useful. So while submitting a FOIL request is relatively easy, getting the records you want is a different matter.
Last year, state agencies claimed to have successfully closed out 54,328 of 57,353 FOIL requests received. But their measure of success includes requests that were dismissed, often on specious grounds, or redacted almost entirely. Many journalists say they have never received a successful response from the state, not for a lack of trying
Want to give it a shot? Here’s a guide on where to begin and where you might end up when filing a FOIL request.
What is FOIL?
The New York State Freedom of Information Law, outlined in Article 6 of the New York Public Officers Law, was enacted in 1974 to make government more transparent for New Yorkers. The state’s law—which was repealed and re-enacted in 1978—was intended to regain public trust that was lost during the Watergate scandal. It was modeled after the federal version of FOIL called the Freedom of Information Act.
Any New Yorker, including prison detainees and undocumented residents can request and obtain certain records from any government agency.
What kind of records can I obtain?
In theory, existing state agency records that impact the lives of New Yorkers is up for grabs. While FOIL requests are usually submitted to state and city agencies, requests can also be made to public authorities, economic development agencies, police departments, and the State Legislature.
Some prior examples of state records released under FOIL include spreadsheets of salaries, internal emails or text messages from work phones, autopsies, procurement contracts, agency budgets, elected official schedules, liquor license applications, deleted social media posts, or restaurant inspections.
What can I use the records for?
Pretty much anything.
What records are off limits?
While FOIL is meant to boost transparency, agencies aren’t exactly an open book. Government agencies can deny you records for a number of reasons, including if the record can expose trade secrets from a private company provided to an agency; invades someone’s personal privacy (e.g. medical, credit histories); interferes with a criminal investigation; discloses state test questions and answers; or endangers someone’s life. While some of these exceptions are obvious, others can be subject to the interpretation of the courts.
In many cases, agencies will invoke these restrictions or other excuses to withhold information that may be unflattering. Former Governor Andrew Cuomo’s administration was famously stingy, routinely denying requests as basic as his travel records. The MTA, another public records hold-out, once claimed they needed months to produce a resignation letter that was believed to have painted the agency in a negative light.
In recent years, some of restrictions have loosened. Most recently, the State Legislature repealed the controversial 50-A law, which blocked the release personnel records of police officers, including those accused of misconduct. But the NYPD has been slow to release many disciplinary records.
Also, beware that not all records are preserved in perpetuity, meaning records from decades ago might have already been destroyed. The length of time agencies hold specific records, which is called retention, can vary. A retention schedule for city and state records can be found here and here.
How do I request records?
Government agencies generally have the same instructions on how to submit a request. In most cases, records requests can be made in writing or over email and sent directly to the agency to whom you’re seeking records. The letter must include your contact information and the address of the agency’s FOIL unit. The unit is often comprised of one person handling a number of requests (a full list of state agency FOIL officers and their unit addresses can be found here; for city FOIL officers, there is no consolidated list). For state records, you can request records on a website that handles these requests. For city requests, click here.
When requesting records, you must reasonably describe what record you want and in what format. This can get tricky as it’s difficult to know how agencies keep records (e.g. Microsoft Word document or Excel spreadsheet), which can then delay the request. One technique would be to request the records in “any form.” The Committee on Open Government, a state-sanctioned entity tasked with ensuring municipalities and the state are complying with FOIL laws, has a sample letter available to help you write a request.
Sometimes, if mailing a physical written request, it helps to have it certified by the post office, just to ensure there are no excuses if it’s not answered.
Are there fees attached to my request?
Yes. Under law, if you request photocopies of a record you can be charged a maximum of 25-cents per page. Pricing is also determined by the storage device used to place the records, the time an employee takes to compile the records, and whether an agency hires a professional group to prepare the records. That can run in the thousands of dollars.
But this portion of the law is arguably obsolete since agency records are mainly preserved digitally. Since the information can be sent via email, and does not require any photocopying on their part, you can receive the records free of charge. You can also visit an agency’s FOIL office to inspect the records to avoid paying a fee; question whether these production fees are really reasonable; and request a fee waiver or agree to pay a fixed price for having the records prepared.
What kinds of records are retained by government agencies?
Most agencies are required to maintain a Subject Matter List outlining its repository of records retained by an agency. It doesn’t mean that every record on the Subject Matter List can be disclosed to the public. Obtaining the records depends on whether they violate the set of privacy statutes mentioned above.
Government agencies have a different Subject Matter List that must be updated during the first quarter of each year and posted online (some do not comply with that requirement). The state Office of Temporary and Disability Assistance, for instance, has record categories on their list that include budget, administrative, and contractor/purchasing records.
What happens after submitting a request?
By law, an agency must send an acknowledgment of the FOIL request a maximum of five business days from the time it’s received. This acknowledgment letter will be sent to you by mail or email (in PDF format). The letter can include a FOIL request tracking number and an estimated timeframe, usually 20 business days, on when your records request will be approved or denied. Or they might just approve or deny your request in the initial letter.
If agencies can’t tell you whether you’re approved or rejected within 20 business days, they will provide another date under what’s called a “reasonable in consideration of the circumstances of the request.” An explanation on why they’re extending the response date must be given. Reasons could range from the complexity in retrieving or producing the record or needed further time for review.
Can you show me an example?
Is “Reasonable In Consideration” subject to interpretation?
Yes. It’s one reason why state agencies continually extend the time it takes to retrieve your record. They can simply reach out to you to say they need more time, and then issue you a new response date. This, if you’re unaware of your rights, can happen repeatedly, delaying your request for months or years.
“There’s no meaningful accountability,” said Cory Morris, an attorney and executive director of Institute for Access to Public Information, which aims to strengthen the state’s FOIL laws. He adds you’re at the mercy of an agency, which can keep extending the response date.
The Committee on Open Government argues there should be no “delay in disclosure” if the records are “clearly available” or “readily retrievable.”
What if I obtain records but they’re not what I requested?
You can start by calling the FOIL request officer assigned to handle the request and firmly explain why those weren’t the correct records, and that the law requires them to submit them to you. You can also call the Committee on Open Government to help frame your argument.
Problems can also arise if records you requested are significantly redacted, which involve portions of a record that are blacked out or audio/visual records that mute sound or blacken images (or both).
What happens if the agency overly redacts the records, denies me, doesn’t give me what I requested, or takes too long?
You can file an administrative appeal on constructive denial grounds to either the same FOIL officer, or another officer who handles FOIL appeals. The appeal must be filed 30 days from the time you received a FOIL response you are unsatisfied with or you risk restarting the FOIL process.
“I always see journalists and people tweeting out about it, ‘Oh, the agency extended my response date again.’ And it’s like, ‘well, you’re remedy under the law […] is to file an appeal,” Gideon Oliver, an attorney who routinely works on FOIL-related cases, said.
Once the appeal is sent, which might need to include the original FOIL request letter, the agency has another 10 business days to approve or reject your request. If you’re once again denied, a full explanation on why you were rejected must be provided. Or, the appeal letter might help turn things around and you could get the records you wanted (sans redactions).
There is no specific language that should be included when writing an appeal, except to express that it’s your right. If you need help writing an appeal letter, the Committee on Open Government has this sample appeal letter available to help frame your argument.
You can also file an appeal if you don’t receive an initial acknowledgment letter within the five business day timeframe or if the initial date on when you’ll receive a response is unsatisfactory to you.
My appeal was denied. Now what?
If every effort to obtain these records has been exhausted, including an appeal followed by denial, suing is the last stage. You or an attorney will have to file suit in state court, challenging the denial under Article 78 of the Civil Law and Practice Rules. You have four months from the time you get a final determination to sue.
From there, your case can languish for months or years. Ultimately, a judge—who can preside over cases that question the delays in the request, whether releasing records violates privacy statutes, or the costs in producing the records—rules for or against your request. For journalists, time is a factor, and delays in decisions can make your records request no longer newsworthy.
If you take your case to court, new provisions in state law can allow a judge to make a government agency pay you costly attorneys fees. Morris, the attorney, said those decisions are not automatic since a judge ultimately has the final say on whether to issue attorney fees.
“The discretion needs to be either stripped or chipped away from the judge,” Morris said.
Editor’s Note: Gideon Oliver is representing Gothamist/WNYC in a legal matter.