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Scope of the law

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All agencies are subject to the Freedom of Information Law, and FOIL defines “agency” to include all units of state and local government in New York State, including state agencies, public corporations and authorities, as well as any other governmental entities performing a governmental function for the state or for one or more units of local government in the state (86(3)).

The term “agency” does not include the State Legislature or the courts. For purposes of clarity, “agency” will be used herein after to include all entities of government in New York, except the State Legislature and the courts, which will be discussed later.

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What is a record?

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All records are subject to the FOIL, and the law defines “record” as “any information kept, held, filed, produced or reproduced by, with or for an agency … in any physical form whatsoever …” (86(4)). It is clear that items such as audio or visual recordings, data maintained electronically, and paper records fall within the definition of “record.”

An agency is not required to create a new record or provide information in response to questions to comply with the law; however, the courts have held that an agency must provide records in the form requested if it has the ability to do so. For instance, if the agency can transfer data into a requested format, the agency must do so upon payment of the proper fee.

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Accessible records

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FOIL is based on a presumption of access, stating that all records are accessible, except records or portions of records that fall within one of eleven categories of deniable records (87(2)).

Deniable records include records or portions thereof that:

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

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

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

(d) 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;

(e) are compiled for law enforcement purposes and which if disclosed would:

i. interfere with law enforcement investigations or judicial proceedings;

ii. deprive a person of a right to a fair trial or impartial adjudication;

iii. identify a confidential source or disclose confidential information relative to a criminal investigation; or

iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;

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

(g) are inter-agency or intra-agency communications, except to the extent that such materials consist of:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government;

(h) are examination questions or answers that are requested prior to the final administration of such questions; or

(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 under authority of section eleven hundred eleven-a of the vehicle and traffic law.

* NB Repealed Dec. 1, 2014

* (k) are photographs, microphotographs, videotape or other recorded images prepared under authority of section eleven hundred eleven-b of the vehicle and traffic law.

* NB Repealed Dec. 1, 2014

* (l) are photographs, microphotographs, videotape or other recorded images produced by a bus lane photo device prepared under authority of section eleven hundred eleven-c of the vehicle and traffic law.

* NB Repealed Sept. 20, 2015

The categories of deniable records generally involve potentially harmful effects of disclosure. They are based in great measure upon the notion that disclosure would in some instances “impair,” “cause substantial injury,” “interfere,” “deprive,” “endanger,” etc.

One category of deniable records that does not deal directly with the effects of disclosure is exception (g), which deals with inter-agency and intra-agency materials. The intent of the exception is twofold. Written communications transmitted from an official of one agency to an official of another or between officials within an agency may be denied insofar as they consist of advice, opinions or recommendations. For example, an opinion prepared by staff which may be rejected or accepted by the head of an agency need not be made available. Statistical or factual information, on the other hand, as well as the policies and determinations upon which an agency relies in carrying out its duties are available, unless a different exception applies.

There are also special provisions in the law regarding the protection of trade secrets and critical infrastructure information. Those provisions pertain only to state agencies and enable a business entity submitting record s to state agencies to request that records be kept separate and apart from all other agency records. When a request is made for records falling within these special provisions, the submitter of such records is given notice and an opportunity to justify a claim that the records would if disclosed result in substantial injury to the competitive position of commercial enterprise. A member of the public requesting records may challenge such a claim.

Generally, the law applies to existing records. Therefore, an agency need not create a record in response to a request. Nevertheless, each agency must maintain the following records:

(a) a record of the final vote of each member in every agency proceeding in which the member votes;

(b) a record setting forth the name, public office address, title and salary of every officer or employee of the agency; and

(c) reasonably detailed current list by subject matter of all records in possession of an agency, whether or not the records are accessible. (87(3))