Underberg & Kessler LLP

Whether one is advocating or opposing a development, an environmental project, or governmental action, New York State’s Freedom of Information Law (“FOIL”) (N.Y. Pub. Off. Law § 84-90) is a significant tool for obtaining access to information and records which might otherwise be unobtainable. Modeled after the Federal Freedom of Information Act (5 U.S.C. § 552), FOIL is one of many state statutes passed as a result of the Watergate and Pentagon Papers affairs to ensure an informed citizenry and increase government accountability by providing access to government records. New York’s legislature acknowledged the importance of this right in the statutory declaration of intent stating: “The people’s right to know the process of governmental decision making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.”

FOIL is an important mechanism for obtaining project information. Proper use of FOIL can streamline development time tables, help to overcome project challenges or, in the alternative, provide the necessary ammunition to defeat a project.

The Statute requires that all governmental agencies in New York State make their records available to the public for inspection and copying unless the records fall within one of several statutory exemptions.^* “Agencies” are defined broadly including, among others, state and municipal departments, boards, divisions, public authorities, public corporations, and other entities performing governmental or proprietary functions for the state or its municipalities. The definition of “records” is also comprehensive, including “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever … including electronic records, drawings, photos and designs.” Each agency and governing body is required to establish rules and procedures regarding the availability of the records consistent with the rules of the Committee for Open Government, a body composed of appointees of the Governor, delegatees of high state officials, an official of local government and two members of the news media.

These FOIL rules must, at a minimum, describe (i) the time and place the records are available; (ii) the persons from whom to obtain the records; and (iii) any copying fees. Within five business days of receipt of a written request for records, all entities subject to FOIL must either make the records available, deny the request in writing or provide written acknowledgment of the request which includes a date by which the request will be granted or denied. Unfortunately, the intent of these statutory provisions to provide timely access to governmental records is often hampered in execution as the responding entity struggles with identifying the requested records from its myriad departments or divisions in an age where records take many forms and storage is as likely to be in individual computers as in file cabinets. When one is facing project submission or opposition deadlines, a response received within five days that states that information will not be available for at least six weeks may satisfy the statutory requirement but be of little use.

Historically, New York courts have favored broad access under FOIL interpreting the statute liberally and directing that its exemptions be read narrowly (Encore College Bookstores, Inc. v. Auxiliary Serv. Corp., 87 N.Y.2d 410 at 416-17 (1995)). The status, need, good faith or purpose of the applicant is irrelevant to the availability of records. Neither the purpose for which the record was created nor the governmental function involved limit the public’s right to access (Stoll v New York State College of Veterinary Med. at Cornell Univ., 94 N.Y.2d 162 at 168 (1999)). Even if the record is sought for litigation against the agency to which the request is directed, the purpose is of no consequence in making a determination regarding access and cannot be the basis for denial. City of Newark v. Law Dept of New York, 305 A.D.2d 28 at 32 (1st Dept. 2003).

The burden is on the agency denying access to prove that a record is exempt from disclosure. Steele v. New York State Dept. of Health, 1983, 119 Misc.2d 963. Exemptions under the statute fall into several categories. No disclosure can be made if it: is prohibited by another statute; would invade personal privacy; is a trade secret, would impair contracts or collective bargaining negotiations; are compiled for law enforcement purposes; is a certain type of interagency material; are examination questions or answers prior to the administration of those examinations; or would impair security of information technology assets. The exemptions to FOIL must be narrowly construed and the burden rests on the government agency denying access to demonstrate that the requested material qualifies for the exemption (Fappiano v. New York City Police Dept., 95 N.Y.2d 738 at 746 (2001)).

Whether one is a project advocate or is vigorously opposing a project or governmental action, FOIL can be a useful means to gathering data, identifying procedural errors and anticipating issues and problems. It should be incorporated into schedules early and used as often as necessary to ensure possession of all governmental information to which the public is entitled.

Terry Richman is a partner at Underberg & Kessler LLP where she provides environmental, land use and municipal legal services. Research assistance was provided by David Tang, legal intern at Underberg & Kessler.