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New York’s Freedom of Information Law

New York State's 25-year-old

“Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.“ —James Madison

Freedom of Information Law (FOIL) is designed to ensure that the public has the access to governmental information it needs to hold policymakers accountable. The legislature made its intentions clear in the legislative findings of the new law:

"The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.

"As state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.

"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. The legislature therefore declares that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article." (1)

New York's Freedom of Information Law is one of the weakest in the nation.
It is very difficult to compare states' Freedom of Information Laws. Each state has different statutes and cultures of openness. However, in a recent analysis of state FOI laws, New York State was graded a D+, or 29th in the nation. (2) The analysis considered five criteria:

(1) The amount of time a public agency or department has to respond to a citizen's request for a public document;
(2) The process a citizen must go through to appeal the decision of an agency to deny the request of a public record;
(3) Whether an appeal is expedited when it reaches the court system;
(4) Whether the complaining party, upon receiving a favorable judgment in court, is awarded attorney fees and costs;
(5) Whether an agency that has wrongfully withheld a record is subject to any civil or criminal punishment.

While New York State's Committee on Open Government does an admirable job interpreting the law, weaknesses limit the effectiveness of the law.

Strengthening and Modernizing the Freedom of Information Law.
After 25 years, weaknesses of the FOIL have become apparent. Legislation to strengthen and modernize law is needed. Reforms should build on recommendations of the Department of State's Committee on Open Government to strengthen the current Freedom of Information Law and modernizes the law by requiring that future government documents will be available via the Internet and requires some current information be available as well. Here's how:

» Require public electronic access to records. A modern FOIL would allow the public easy access - via the Internet - to many FOIL-able documents. Records should made available shall be where there is a "substantial public interest in electronic access." Not all records will be made accessible. Reforms should include steps to require how localities should follow suit.

Currently, there is no such requirement. Information that is collected in electronic format is often available as such. Internet access is restricted to when there is either a legal requirement to do so - for example campaign contribution data or physicians' malpractice history - or an agency decides to put the record on the Internet.

Increasingly, the public is obtaining information from sources on the Internet. The federal government and some states now have a requirement that citizens can access agency records via the Internet. Making access in such a manner enhances openness, reduces agency costs and helps educate the public.

» Broaden the current allowance for attorney's fees when a citizen brings a successful FOIL action against a stonewalling agency. Current law allows for attorneys fees, however, the standard for success to quite high requiring that plaintiffs prove that the record in question was "of clearly significant interest to the general public" and that the agency "lacked a reasonable basis" for withholding the information. The single biggest complaint heard about New York's FOIL is the difficulty citizens have in obtaining government records. There is a widespread belief that agencies make it unnecessarily difficult for the public to access records. This section sets a more reasonable standard for attorneys' fees when the plaintiff "substantially prevailed" in bringing legal action. This provision should help knock down unnecessary barriers to public access.

» Loopholes should be closed. Reforms should tighten up and streamline the current trade secret exemption. The process is greatly simplified by granting such exemptions for one year, renewable. Any reform should make it much more difficult for agencies to copyright public records. Moreover, confidential information is to be narrowly granted in both paper and electronic form. The bill requires that agency information in electronic format be easily manipulated to both foster electronic access to the public and protect confidentiality when appropriate. (3)

Basic Information about New York State's FOI Law. (4)

Who is subject to the Freedom of Information Law? Any New York State or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function is subject to the Law. The courts are outside its coverage but often must disclose records under other provisions of law. The State Legislature is covered by the Freedom of Information Law but is treated differently from agencies generally. Private corporations or companies are not subject to the Freedom of Information Law.

What records are available? All records are available, unless an exception permits an agency to deny access. Most of the exceptions are based upon common sense and the potential for harm that would arise by means of disclosure. If disclosure of records would be damaging to an individual or preclude a government agency from carrying out its duties, it is likely that some aspects of the records may be withheld.

How long is the wait to get access to records? The Freedom of Information Law states:

"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 when such request will be granted or denied..." (5)

"...any person denied access to a record may within thirty days appeal in writing such denial to the 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." (6)

How much can be charged for public records? An agency may charge up to 25 cents per photocopy not in excess of 9 by 14 inches, or in the case of records that cannot be photocopied, the actual cost of reproduction (for example, photographs, computer disks, tape recordings, etc.), unless otherwise prescribed by statute. An agency cannot charge for search or clerical time.

Does the Freedom of Information Law apply to computer records? Yes. The term "record" is defined to include all information kept, held, filed, produced or reproduced by, with or for an agency, in any physical form whatsoever. Therefore, the Freedom of Information Law clearly applies to government records generated, received, or maintained electronically.

Must a reason be given to gain access to public records? No. An agency cannot ask a requester why he or she wants records or what the intended use of the record might be. The only instance in which an agency can ask why a person wants a record is when the request is for a list of names and home addresses. The agency is authorized to seek an assurance that the list will not be used for commercial or fund-raising purposes; if it is determined that a list will be used for these purposes, an agency can deny access.

Public Access in the Age of Terrorism.
Governor Pataki has proposed legislation that attempts to respond to the dangerous threat posed by terrorism by creating new, broad FOI exemptions that allowing information to remain secret if the records are "obtained or compiled in monitoring, investigating or preparing for suspected or potential terrorist activity." (8) The bill does not define "terrorism." Such exemptions are so broad that it would give state agencies far reaching authority to deny the public access to information that has nothing to do with public protection, but has everything to do with protecting bureaucracies from embarrassment. For example, a state agency could prohibit disclosure of toxic spills at an electric power plant if the information was compiled in the process of looking for potential terrorist activity.

No one is arguing that New York's FOI law should allow disclosure of information that could end up hurting people. Current law already protects the public from giving dangerous information to criminals. Our organizations urge that lawmakers focus on real reforms - like those mentioned above.

Homeland Security Law and Its Impact on FOIL
As part of the federal government's Homeland Security Act, new exemptions were created to the federal and state Freedom of Information laws. Under the Act, "critical infrastructure" data voluntarily turned over to the federal government would be not only exempt from disclosure under the federal FOIA, but if that information was turned over to the state, it would be exempt from state FOIL as well. The "Critical Infrastructure Information Act," part of the Homeland Security Law, states that when a business voluntarily submits "critical infrastructure information" to the Department of Homeland Security, it is exempt from the federal FOIA. Some examples of critical infrastructure are electric grids, water supplies, telephone systems or atomic energy facilities. Further, if the federal government gives that information to a state, then that information is exempt from state FOIL as well. (9)The law also grants businesses immunity from civil liability for violations of securities law; civil rights; environmental, labor and consumer protections; and health and safety laws should such violations be revealed in the information they provide to the Department.

Common Cause/NY
Contact: Rachel Leon, 212 564-4365

League of Women Voters/N.Y.S.
Contact: Barbara Bartoletti, 518 465-4162

New York Public Interest Research Group (NYPIRG)
Contact: Blair Horner, 518 436-0876

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