Holding Court is a column by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City. Latwin appeared on Episode 8 of Season 1 of our podcast MyRye.com Conversations with Doug French. Listen to learn more about Latwin and the Rye City Courts.
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Foiled again
The Legislature has declared that a free society is maintained when the 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.
To accomplish these goals the Legislature passed the Freedom of Information Law (“FOIL”), Public Officers Law § 87. Contrary to popular belief, many users are not ordinary citizens, but rather entities seeking information for business purposes. Lawyers looking for evidence, news media looking for stories, developers looking for properties, political gadflies, etc. This law has been perverted shifting the costs of open government from businesses to the taxpayers.
FOIL is for existing records that are maintained in some physical format. If a record does not already exist in a physical format, it does not have to be created. An agency is not required to answer questions or create a new record in response to questions.
How it works: Every governing public body must make uniform rules to make records available. Fees for paper copies of records may not exceed twenty-five cents per photocopy for regular sized papers, or the actual cost of reproducing any other record. If an electronic copy is available no fee can be except for the actual cost of a storage device or media if one is provided to the requester. In determining the actual cost of reproducing a record, it cannot include search time or administrative costs, and no fee shall be charged unless at least two hours of employee time is needed to prepare a copy of the record requested. So, the taxpayers are paying for government employees to look for and reproduce records for the news media and lawyers.
Usually, governments publish information on their websites. Rye’s is at www.ryeny.gov.government/city-clerk/foil-requests-61. The record sought must be reasonably described and the request should not be too broad. It must be sent to the City Clerk. When a FOIL request is submitted, the requestor will receive an email acknowledgment indicating that they can expect to receive a response within 20 business days or with a projected date by which they can expect to receive the documents. If the records are available online, the requestor may be directed to where those records can be found.
I recently had a criminal case where the police did not have to provide disclosure in the criminal case. I sent FOIL requests to the City to get police department records, including body worn camera videos of the encounter, telephone calls to the police, radio transmissions from Headquarters to the officer in the field and police reports. I got them for free and my client was grateful. I have not made FOIL requests because the City has put voluminous records online, such as property records, Planning Commission and City Council minutes.
While all records are presumed available, an agency may deny access to records
or portions thereof that are exempt from FOIL. The next column will discuss those items not covered by FOIL.
