Did you know that you have the right to know? It is a statutory civil right in New York. The New York Freedom of Information law ("FOIL") states 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.
"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." New York law allows a citizen to request documentation and records via the Freedom of Information Law from the government and the government must respond.
While FOIL is relatively easy to use and there are free templates online, having a knowledgable and experienced attorney can greatly assist in obtaining access to records. The Law Offices of Cory H. Morris can assist you in obtaining access to government records via the New York Freedom of Information Law. For a flat fee, the Law Offices of Cory H. Morris can handle your Freedom of Infomation Law Request, Appeal and/or Article 78.
New York Freedom of Information Law (FOIL) - Your Right to Know
The New York Court of Appeals observed that FOIL “can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short ‘to hold the governors accountable to the governed.’ ”
"[T]he statute affords the public the means to attain information concerning the day-to-day operations of State government. By permitting access to official information long shielded from public view, the act permits the electorate to have sufficient information in order to make intelligent, informed choices with respect to both the direction and scope of governmental activities."
The New York Freedom of Information Law (FOIL) is based on the principle that “[o]pen and accessible government is a hall-mark of a free society, engendering public understanding and participation.” The courts have consistently recognized that“ ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government,’ ” and that the Legislature enacted FOIL to: “achieve[ ] a more informed electorate and a more responsible and responsive [government].”
FOIL "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies." To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted. FOIL expressly provides that an agency that has denied disclosure on the basis of an exemption "shall in all proceedings have the burden of proving entitlement" to the exemption
Time and again, the Court of Appeals has observed that the statute “can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short ‘to hold the governors accountable to the governed.’ ” The New York Freedom of Information Law “declares all agency records open to the public unless they fall within one of eight categories of exemptions.” Given the statute’s broad objectives, the Court of Appeals has consistently held that “ The New York Freedom of Information Law is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.’ ” “By their very nature such objectives cannot hope to be attained unless [access to government records] becomes the rule rather than the exception.”
The New York The Freedom of Information Law requires a particularized and specific justification for denying access to demanded documents that is more than a “blanket” exemption. A court is to presume that all records are open, and it must construe the statutory exemptions narrowly. The agency is required to "articulate a particularized and specific justification for denying access.'" Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed"
Both the Court of Appeals and the Committee on Open Government have interpreted the statute to impose a robust obligation on agencies to release portions of documents after redacting those portions that are exempt from disclosure.
The trend toward an increasingly robust disclosure requirement under the New York Freedom of Information Law culminated in the Court of Appeals’ decision in Gould v. New York City Police Department, 89 N.Y.2d 267, 653 N.Y.S.2d 54 (1996). Gould was a consolidation of three proceedings in which the petitioners sought information from the NYPD related to their arrests. 89 N.Y.2d at 272-73, 653 N.Y.S.2d at 56. In Gould, the NYPD released some of the requested material but withheld the “complaint follow-up reports,” which they claimed were categorically exempt from FOIL’s disclosure requirements under section 87(2)(g) as inter-agency materials. Id. The Court rejected the NYPD’s claim, finding that the complaint follow-up reports contained factual data, which are not exempt under section 87(2)(g). 89 N.Y.2d at 277, 653 N.Y.S.2d at 58-59.
The Gould court, after emphasizing FOIL’s policy of “ensur[ing] maximum access to government documents,” stated that “blanket exemptions for particular types of documents are inimical to FOIL’s policy of open government.” 89 N.Y.2d at 275, 653 N.Y.S.2d at 57. Since then, power courts have cited Gould for the proposition that “[w]hen a document subject to FOIL contains both confidential and non-confidential information, agencies are required to prepare a redacted version with exempt material removed.” New York Rifle & Pistol Ass ‘n v. Kelly, 831 N.Y.S.2d 348 (table), 2006 N.Y. Slip Op. 51983(u), 2006 WL 2976759, at *3 (Sup. Ct. N.Y. County 2006) (ordering the NYPD to disclose redacted documents); New York Public Interest Research Group, Inc. v. Cohen, 729 N.Y.S.2d 379, 381 (Sup. Ct. N.Y. County 2001).
The Committee on Open Government has similarly interpreted Gould, in conjunction with the “portions thereof” language in section 87(2). In a 2003 advisory letter, the Committee stated that: the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law... I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by the Department ... for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.
It is well established that an agency must articulate a “particularized and specific justification“ for denying access. Indeed, "[i]n this regard, perhaps most importantly, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law." Committee on Open Government FOIL Advisory Opinion 12579 (Mar. 16, 2001).
FOIL Requests and Appeals: New York Supreme Court Article 78 Proceedings
After a FOIL request is made and an appeal follows, if the agency still persists in refusing to provide records pursuant to the New York Freedom of Information Law, judicial review vis-a-vis an Article 78 proceeding is the next logical step. The office handles such proceedings and, if necessary, appeals from a Supreme Court denial.
The Article 78: While typically an agency action is reviewed under an “arbitrary and capricious” standard, a Supreme Court’s application of that standard to an agency's refusal to disclose the subject records under the New York Freedom of Information Law is incorrect. When reviewing the denial of a FOIL request, a court must apply a far different rule. It is to presume that all records of a public agency are open to public inspection and copying, and must require the agency to bear the burden of showing that the records fall squarely within an exemption to disclosure. See Public Officers Law § 89(5)(e); Matter of Markowitz v. Serio, 11 N.Y.3d 43, 50–51, 862 N.Y.S.2d 833, 893 N.E.2d 110 (2008); Matter of Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 566, 505 N.Y.S.2d 576, 496 N.E.2d 665 (1986); Matter of Bahnken v. New York City Fire Dept., 17 A.D.3d 228, 229–230, 794 N.Y.S.2d 312 (2005), lv. denied 6 N.Y.3d 701, 810 N.Y.S.2d 415, 843 N.E.2d 1155 (2005). This more exacting standard of appellate review is sometimes necessary to bring vital agency records and documentation forward.
Indeed, the Supreme Court (FOIL Article 78 proceeding) should "start with the premise that a governmental body seeking an exemption from the disclosure requirements of FOIL is required to establish its right thereto" Matter of Pasik v. State Bd. of Law Examiners, 102 AD2d 395, 398 (1st Dep't. 1984) (citing Matter of Westchester Rockland Newspapers v. Kimball, 50 NY2d 575 (1980). "Only where the material requested falls squarely within the ambit of one of [the] statutory exemptions may disclosure be withheld." Matter of Fink v. Lefkowitz, 47 NY2d 567, 571 (1979). The agency is supposed to establish that FOIL does not apply.
The legislative purpose in the Freedom of Information Law is mainly accomplished through the definitions of "Agency" and "Record." An agency comprehensively includes "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation … or other governmental entity performing a governmental or proprietary function for the state or [a local government]" Public Officers Law § 86(3). "Record" is broadly defined to include "any information kept, held, filed, produced or reproduced by, with or for an agency … in any physical form whatsoever" Public Officer Law § 86(4); Newsday, Inc. v. Empire State Dev. Corp., 98 NY2d 359, 362 (2002). The judiciary is presumptively open and one could watch court proceedings or copy (certain) court records. FOIL was created for agency records that may not be as available as judiciary records. An Article 78 is the tool utilized to have judicial review of a FOIL request.
In forcing a FOIL Article 78 proceeding, even an appeal to an appellate court, a FOIL record seeker may be entitled to reasonable attorney's fees. "The award of attorney's fees is intended to 'create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL' " Matter of Acme Bus Corp. v County of Suffolk, ___AD3d___, 2016 NY Slip Op 01171, *1 (3d Dep't. 2016) (quoting Matter of NY Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338 (3rd Dep't. 2011)). Although you may bear the burden if you lose, a respondent agency has a strong deterrent against persisting in refusing to produce FOIL records that should be accessible to the public.
New York Freedom of Information Law: New York State Open Government Laws
New York Open Meetings Law Advisory Opinions
New York Freedom of Information Law Advisory Opinions
The Committee on Open Government: Freedom of Information Law