Holding Court: FOIL or TMI?

Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.

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By Joe Latwin

James Madison said “A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.”  To support this concept, Congress passed the Freedom of Information Act (“FOIA”) and New York enacted the Freedom of Information Law (“FOIL”).

To promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public. The statute is based on the policy that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government. Consistent with the legislative declaration in FOIL, FOIL is liberally construed and its statutory exemptions narrowly interpreted. All records are presumptively available for public inspection and copying, unless the agency satisfies its burden of demonstrating that the material requested falls squarely within the ambit of one of the statutory exemptions.

A request for records can simply be made by letter, or in some cases, on forms provided by the government agency and sent to the agency. Records must be in a physical form, including in electronic media. You can’t get unrecorded conversations. Certain government entities are not included in FOIL, including the courts (governed by the Judiciary Law), and the State Legislature, including its committees and select commissions.

Certain records are exempt from FOIL The exempt records include records that:

(a) are specifically exempted from disclosure by state or federal statute;

(b) if disclosed would constitute an unwarranted invasion of personal privacy;

(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

(d) are trade secrets information which if disclosed would cause substantial injury to the competitive position of the enterprise;

(e) are compiled for law enforcement purposes only to the extent that disclosure would:

• • interfere with law enforcement investigations or judicial proceedings;
  • deprive a person of a right to a fair trial or impartial adjudication;
  • identify a confidential source or disclose confidential information relating to a criminal investigation; or reveal criminal investigative techniques or procedures, except routine techniques and procedures;

(f) if disclosed could endanger the life or safety of any person;

(g) are inter-agency or intra-agency materials which are not:

• • statistical or factual tabulations or data;
  • instructions to staff that affect the public;
  • final agency policy or determinations;
  • external audits, including but not limited to audits performed by the comptroller and the federal government; or

(h) are examination questions or answers which are requested before   the final administration of such questions.

(i)  if disclosed, would jeopardize the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures; or

(j) are photographs, microphotographs, videotape or other recorded images prepared with respect to traffic control indications.

The government has the burden of showing the records is subject to one of these exemptions.

Once a request is received, the agency has a certain time period in which to respond saying when the records will be available and what the cost of the production of the records will be. If the request is denied, you have 30 days to appeal the agencies determination, usually to the designated FOIL appeals officer of the agency. The cost per photocopy not in excess of nine inches by fourteen inches is 25 cents, or the actual cost of reproducing any other record.

What has this law wrought? Many agencies will avoid putting anything in writing, unless required by law to do so. Due to the volume of requests some agencies have had to divert staff from doing their assigned tasks to respond to FOIL requests. Some have had to hire more employees (paid for by the taxpayers).

Who uses FOIL? Media. This has often replaced reporters doing the leg work to investigate things, but instead sifting through government records looking for dirt. Lawyers seeking information to use in Court. I once had to review hospital records requested by personal injury lawyers looking for patterns of patient abuse. I had to review over 20 boxes of papers to redact medical information. It took the better part of six months! During which time I could have been doing my lawyer work. Gadflies who pursue political opponents often file numerous and sometimes duplicative requests.

Sometimes I wonder if there is too much information or if the costs can be transferred from the taxpayers to the people who make money from the information sought.  Why should the taxpayers pay for doing the work of private lawyers, researching for newspapers, or helping political opponents?