NASSAU COUNTY CIVIC ASSOCIATION, INC.

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New York State's Freedom of Information Law

 

To ensure accountability, government must be open and honest. In order to preserve this principle, the federal government along with state governments enacted Freedom of information laws. These laws give specific rights to the public to access governmental records. The agencies included are state agencies, public corporations, authorities and local governments. The law does not apply to the New York State legislature and the courts.

New York State's Public Officer's Law, Section 86 (4) defines a 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)). This would include documents in electronic format such as floppy discs, CD's, etc.

The presumption is that all records are accessible unless they fall within one of the nine categories that are exempt under 87 (2). The Committee on Open Government provides advisory opinions to those requesting records as well as local governments. 

Deniable records include records or portions thereof that:

are specifically exempted from disclosure by state or federal statute;

  1. would if disclosed result in an unwarranted invasion of personal privacy;
  2. would if disclosed impair present or imminent contract awards or collective bargaining negotiations;
  3. 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;
  4. 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;
  5. would if disclosed endanger the life or safety of any person;
  6. 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.
  7. are examination questions or answers that are requested prior to the final administration of such questions; orare
  8. computer access codes.

An agency must provide access to records but does not have to create a record in order to comply with a request for information. Pursuant to section 87(3)), the agency must compile the following records: 

  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 (subjects or file categories) of all records in possession of an agency, whether or not the records are accessible.
 

Regulations
Each agency must adopt standards based upon general regulations issued by the Committee on Open Government. These procedures describe how you can inspect and copy records. The committee will provide a copy of its regulations on request.

Designation of Records Access Officer
Under the regulations, a records access officer (or officers) must be appointed by each agency or local government to coordinate an their response to public requests for records.

The records access officer is responsible for keeping the subject matter list up to date, assisting you in identifying records sought, making the records promptly available or denying access, providing copies of records or permitting you to make copies, certifying that a copy is a true copy and, if the records cannot be found, certifying 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 which is being sought (section 89(3)). It is extremly important to properly identify the record you are looking for. If the request is not explicit, the agency may broadly interpret your request which may encompass records that are not necessary or desired. This may end up being very costly.

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.

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.

If an agency has no photocopying equipment, a transcript of records must be made on request. However, you may be charged for the clerical time involved.

Denial of Access and Appeal
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 hear appeals by the head or governing body of the agency. You may appeal within 30 days of a denial.

Upon receipt of the appeal, the agency head, governing body or appeals officer has 10 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.

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)).

A new provision in 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.

Public Notice
The regulations require that each agency post conspicuously and/or publicize in a local newspaper:

 

Access to Records of the State Legislature

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; (c) legislative notification of the proposed adoption of rules by an agency;
  3. 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;
  4. 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;
  5. administrative staff manuals and instructions to staff that affect the public;
  6. final reports and formal opinions submitted to the Legislature;
  7. final reports or recommendations and minority or dissenting reports and opinions of members of committees, subcommittees, or commissions of the Legislature; and
  8. 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 records 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 Request Letter

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

Re: Freedom of Information
Law Request

Dear 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 ____________ (attempt to identify the records in which you are interested as clearly as possible).

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

Sample Appeal Letter

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: ___ (enumerate the records that were denied).

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

This information and the sample letters were obtained from the New York State website on open government.