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2019 News

February 2019 - Updates to FOIL and OML Case Law Summaries

2017 News

January 2017 - FOIL and OML Case Law Summaries

2016 News

2016 Annual Report to the Governor and State Legislature

2016 Case Law Summaries

2015 News

June 2015 – OML Case Law Summaries Update
Take a look at our new OML Case Law Summaries list. It is now complete with links to important but unreported decisions, full citations, and includes all cases that we are aware of, up to and including those issued in December of 2010.

May 2015 – Police Body Cameras: An Idea Whose Time has Come

January 2015 – FOIL at 40 Panel Discussion - Video Now Available

2014 News

2014 Annual Report to the Governor and the State Legislature

November 2014 – You're Invited

September 2014 – Wishing FOIL a Happy 40th Birthday!

August 2014 – FOIL Case Law Summaries Update

May 2014 – Names of Retirees Receiving Public Pensions Public

March 14 - Firearm Licensee Names and Addresses

2013 News

December 2013 - Retention and Disposal of Electronic Communications

2013 Annual Report to the Governor and the State Legislature

October 2013 - New Definitions of Ongoing Police Investigations

June 2013 – New York County Awards Attorney’s Fees

June 2013 - Access to Firearm Licensee Names and Addresses

April 2013 - Substantially Prevailed
The Appellate Division, Third Department, has again clarified the requirements of the law with respect to when an applicant has “substantially prevailed”, and is therefore entitled to an award of attorney’s fees.

March 2013 - Foil Saves Lives

February 2013 - FOIL and Privacy: Where Do We Draw the Line?
Prepared for publication by the New York State Association of Town Clerks.

2012 News

2012 Annual Report to the Governor and State Legislature (pdf)
The Committee’s Annual Report setting forth legislative recommendations and a summary of the Committee’s activities for the year.

November 2012 - Reasonableness

April 3, 2012 decision by Court of Appeals offers authority to gain access to records or portions thereof during the course of criminal prosecution, within limitations

February 2012 - Questions and Answers Regarding Records Discussed at Open Meetings
Disclosure of Records Scheduled to be Discussed during Open Meetings

Effective February 2, 2012:  Disclosure of Records Scheduled for Discussion at Open Meetings
The purpose of the amendment is simple:  those interested in the work of public bodies should have the ability, within reasonable limitations, to see the records scheduled to be discussed during open meetings prior to the meetings.

February, 2012 - Recent Appellate Division decision regarding the specificity of motions for entry into executive session
The Open Meetings Law requires that a motion for entry into executive session must indicate the subject or subjects to be discussed.

2011 News

2011 Annual Report to the Governor and State Legislature (pdf)
The Committee’s Annual Report setting forth legislative recommendations and a summary of the Committee’s activities for the year.

Report: Evaluating the Importance of Technology and the Role of Information Providers within Local Governments in New York. (doc)
Megan Sutherland, Candidate for M.S. at SUNY Albany Graduate School of Information Science and Policy, interned for the Committee in the summer of 2011, collecting and analyzing information regarding the use of online resources by local government agencies.

Freeman Receives Lifetime Achievement Award from NYS Associated Press Association

Recent Decisions Regarding the Award of Attorney’s Fees under FOIL

            For nearly twenty-five years, FOIL stated that a court could award attorney’s fees when it was found that (1) the person denied access “substantially prevailed”; (2) the agency had no reasonable basis for withholding the records; and (3) the records were of “clearly significant interest to the general public.”  The purpose of that provision, according to the sponsor the bill, was to overcome “the ‘sue us’ attitude” of some agencies, a stance found to be contrary to FOIL’s legislative intent.

            It became clear, however, that a court’s authority to award attorney’s fees was limited and weak.  If an agency stonewalled and denied access without justification, and if the records were important only to the person requesting them, attorney’s fees could not be awarded because the records would not have been significant to the public.

            That requirement was eliminated in 2006, and  the courts were given expanded authority to award attorney’s fees when (1) the person denied access substantially prevailed and (2) the court finds either that (a) the agency had no reasonable basis for denying access or (b) the agency failed to respond to a request in a timely manner as specified in FOIL.

            Those more recent standards were recently considered in depth for the first time in two decisions rendered in July by the Appellate Division, Third Department.

            New York Civil Liberties Union v. City of Saratoga Springs involved a request made in April, 2009, for records relating to the use of tasers.  The request was denied, and NYCLU initiated an Article 78 proceeding in October.  Soon after the commencement of the lawsuit, the parties attempted to negotiate a settlement.  Those efforts were unsuccessful, which led NYCLU to request a conference with Supreme Court.  Following the conference, the City disclosed portions of the records.  That led to a determination by the Court that the records must be disclosed in their entirety.  Although the Court found that each condition necessary to award attorney’s fees was met, the request for an award was rejected.

            The Appellate Division agreed with NYCLU’s contention that the lower court’s denial of a request for an award of attorney’s fees represented an abuse of discretion.  While the Appellate Division confirmed that an award is discretionary, it referred to the legislative intent regarding the 2006 amendment, which was “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.” 

            In reversing the initial holding, it was found that the lower court’s characterization of resolution of the controversy as “essentially informal and voluntary” was contrary to the facts.  The Court pointed to “tactics to delay disclosure”, missing deadlines, failures to return telephone calls, and most importantly, to the reality that “complete disclosure was made – more than a year after the initial request – only after further intervention by the court and an order directing [the City] to provide an unredacted copy of the records.”.  It was emphasized that “all of the prerequisites for such an award were met and [the City] neglected to offer any excuse for their failure to timely respond to [NYCLU’s] request’(emphasis added by the Court).  The Court added that “in view of the fact that it was only through the use of the judicial process that [NYCLU] was able to obtain the required disclosure and {the City] evinced a clear disregard of the public’s right to open government – we fund that the denial of [NYCLU’s] request for an award of counsel fees was an abuse of discretion.”

            The other decision, New York State Defenders Association v. New York State Police, involved a request for “policies relating to electronic recording of custodial interviews, interrogations, confessions and statements.”  The State Police rejected the request in its entirety, but after a judicial proceeding was initiated, all of the records that were requested were attached to its response to the petition.  Based on that disclosure, it was contended that the matter was moot, and the Supreme Court dismissed the petition and the request for attorney’s fees.

            The Appellate Division, however, rejected the claim by the State Police that the Defenders Association did not substantially prevail, stating that “to allow [an agency] to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purpose of FOIL’s fee-shifting provision.”  On the contrary, because the State Police disclosed the records sought, the applicant “may be said to have substantially prevailed.”

            It was also found that the State Police had no reasonable basis for issuing a “blanket denial” of the request.  To argue that there was a reasonable basis for denying access was “belied by the virtually immediate release of the requested information upon commencement of this proceeding.”  Because the lower court based its denial of an award of attorney’s fees “on its erroneous conclusion that the statutory prerequisites were not satisfied”, the Appellate Division referred the matter back to the lower court to determine whether such an award would be proper.

            In short, the handwriting appears to be on the wall: agencies cannot delay disclosure of records or deny access to records unless there is a good reason to do so.  If they do delay or withhold records without justification, it is possible and perhaps likely that the person requesting the records may be awarded attorney’s fees payable by the agency.

Public Bodies Required to Allow Photographing, Recording and Broadcasting of Public Meetings

The Legislature amended Open Meetings Law §103 to confirm judicial decisions concerning photographing and recording open meetings of public bodies.  In short, the courts determined that anyone may record open meetings, so long as use of a recording device is not disruptive or obtrusive.  Public bodies are now required by law to allow meetings to be photographed, broadcast, webcast or otherwise recorded and/or transmitted by audio or video means.  The new provision also states that public bodies may adopt reasonable rules governing the use of cameras and recording devices during open meetings, in which case such rules must be conspicuously posted and provided to those in attendance upon request.

In our opinion, if the public body does not adopt written rules governing such issues, it would not be precluded from imposing reasonable procedures in order to effectuate the efficient functioning of government. The Committee has prepared model rules available here.

2010 News

E-Foil Conference
A brief summary of a three-part conference held in December 2009 at Albany Law School, E-FOIL: Issues of Access in the Digital Age. Part 1 describes the first panel discussion, including practical ways that state agencies are handling requests that identify large volumes of electronic records. Part 2 summarizes the keynote address, as well as the information technology discussion held by the second panel of participants. The third part summarizes remarks from the Connecticut Freedom of Information Commission, as well as the discussion at the end of the conference by the third panel of experts, regarding future prospects.

Public Bodies Required to Make Reasonable Effort to Hold Meetings in Room that can Accommodate Volume

Effective April 14, 2010, §103 of the Open Meetings Law requires that public bodies make reasonable efforts to hold meetings in rooms that can “adequately accommodate” members of the public who wish to attend.  The intent of the amendment is that public bodies hold meetings in locations that can reasonably accommodate the number of people that can reasonably be expected to attend.  For example, if a typical board meeting attracts 20 attendees, and meetings are held in a meeting room which accommodates approximately 30 people, there is adequate room for all to attend, listen and observe.  But in the event that there is a contentious issue and indications of substantial public interest, numerous letters to the editor, phone calls, emails regarding the topic, or perhaps a petition asking officials to take action, the new provision requires the public body to consider the number of people who might attend the meeting and take appropriate action to hold the meeting at a location that would accommodate those interested in attending, such as a school facility, a fire hall or other site. 

Changing the location of a meeting may require providing notice of the new location as required by section 104 of the Open Meetings Law. 

Court Has Discretionary Authority to Declare Action Taken Void and/or Require Public Body to Receive Training

Pursuant to Open Meetings Law §107, courts have long had the authority to invalidate action taken in private in violation of the Open Meetings Law. Before invalidating any action or portion thereof, and only upon good cause shown, a court must find that there was a violation of that law.

This enforcement mechanism was amended, effective June 14, 2010, to permit a court to declare either that the public body violated the Open Meetings Law and/or declare the action taken void. Further, if the court determines that a public body has violated the law, it has the authority to require the members of the public body to receive training given by the Committee on Open Government.

Agencies Generally Prohibited from Releasing Social Security Numbers

An amendment to the Public Officers Law effective in January, 2010 prohibits agencies from disclosing social security numbers to the public.

Section 96-a provides as follows:
Unless required by state or federal law, state and local government agencies are prohibited from (a) intentionally communicating social security numbers to the public; (b) printing a social security number on any card or tag required to access products, services or benefits; (c) requiring transmission of a social security number over an unsecured line or an unencrypted format; (d) requiring use of a social security number to access an internet webs site without an additional authentication device; (e) including a full social security number on any paper or electronic communication (except in certain circumstances); and (f) encoding a social security number for use as a bar code or other technology.

County clerks are permitted to continue to make records containing social security numbers available if the records were filed prior to 2010, unless requested by individuals to redact social security numbers from the records.

2009 News

“Freedom of Information Law” Government, Law and Policy Journal, New York State Bar Association, Vol. 11, No. 1, Spring 2009. A compilation of articles written by a collection of practitioners, including a law school professor, an editor, and both the Executive and Assistant Directors.

Public Bodies Must Provide Notice of Meetings Online

Section 104 of the Open Meetings Law pertains to notice and states that:

“1. Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting.

2. Public notice of the time and place of every other meeting shall be given to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.

3. The public notice provided for by this section shall not be construed to require publication as a legal notice.

4. If videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations.”

In May of 2009, the Legislature added subdivision (5), set forth as follows:
“5. When a public body has the ability to do so, notice of the time and place of a meeting given in accordance with subdivision one or two of this section, shall also be conspicuously posted on the public body’s internet website.”

Section 104 now imposes a three-fold requirement: one, that notice must be posted in one or more conspicuous, public locations; two, that notice must be given to the news media; and three, that notice must be conspicuously posted on the body’s website, when there is an ability to do so. The requirement that notice of a meeting be "posted" in one or more "designated" locations, in our opinion, mandates that a public body, by resolution or through the adoption of policy or a directive, select one or more specific locations where notice of meetings will consistently and regularly be posted. If, for instance, a bulletin board located at the entrance of a town hall has been designated as a location for posting notices of meetings, the public has the ability to know where to ascertain whether and when meetings of a town board will be held. Similarly, every public body with the ability to do so should post notice of the time and place of every meeting online.

2008 News

New Provisions Modernize and Clarify FOIL

Legislation approved by Governor Paterson and effective August 7, 2008 (Chapter 223) modernizes the Freedom of Information Law (FOIL) and clarifies several of its provisions. The amendments reflect a recognition of advances in information technology, as well as judicial determinations and advisory opinions prepared by the Committee on Open Government. It also provides guidance to agencies and the public concerning the costs associated with providing access to information that is maintained electronically.

Fees for Electronic Information

A new section 87(1)(c) for the first time defines the basis for determining the actual cost of reproducing records maintained electronically. For many years, section 87(1)(b)(iii) of FOIL stated that unless a different fee is prescribed by statute, an agency could charge a maximum of twenty-five cents per photocopy when records are made available, or the actual cost of reproducing other records, i.e., those that are not or cannot be photocopied. The new provisions balance the public interest in gaining access to computerized records at low cost with the tasks carried out by agencies when making those records available.

In most instances, gaining access to those records can be realized without a financial hardship, for the actual cost relating to most requests involves only the cost of the storage medium in which the information is made available, i.e., a computer tape or disk. However, in those instances in which substantial time is needed to prepare a copy, at least two hours of an employee’s time, the legislation permits an agency to now charge a fee based on the cost of the storage medium used, as well the hourly salary of the lowest paid employee who has the skill needed to do so. This change in FOIL for the first time authorizes agencies to determine and assess a fee to be charged on the basis of an employee’s time.

In rare cases, those in which an agency’s information technology equipment is incapable of preparing a copy, an agency can charge the actual cost of engaging a private professional service to do so. In analogous circumstances, it has been advised that a fee based on actual cost may include all expenditures incurred by an agency associated with preparing a copy, such as postage, transportation, and the like. Expenditures of that nature may, in our view, be included as part of the actual cost and the fee that an agency could charge. An applicant must be informed of the fee in advance if more than two hours of employee time or an outside professional service is needed to prepare a copy of a record. With advance knowledge of the amount of the fee that would be assessed, applicants in many situations may narrow the scope of their requests.

Large Requests

The initial clause of amendments to section 89(3)(a) of FOIL codifies and confirms the judicial finding that a denial of access to records due to a contention that an agency has a shortage of staff would, in the words of that decision, “thwart the very purpose of the Freedom of Information Law and make possible the circumvention of the public policy embodied in the Act” [United Federation of Teachers v. New York City Health and Hospitals Corporation, 428 NYS2d 823, 824 (1980)]. The ensuing clause states that an agency cannot deny a request due to insufficient staff or other basis if an outside service can be retained to accommodate the applicant, and if the applicant agrees to pay the actual cost of reproducing the records.

Recognizing the Benefits of Information Technology

A new section 87(5) requires an agency to “provide records on the medium requested...if the agency can reasonably make such copy.” This requirement clarifies and confirms judicial decisions rendered over the course of years, those requiring that agencies make records available economically on computer tapes or disks, rather than photocopying [see Szikszay v. Buelow, 436 NYS2d 558 (1981)], or by transferring data onto computer tapes or disks, instead of printing out as much as a million pages on paper at a cost of thousands of dollars [see Brownstone Publishers, Inc. v. New York City Department of Buildings, 560 NYS2d 642 (1990)]. It also specifies that records provided in a computer format shall not be encrypted.

Creating, Extracting and Generating Records

Section 89(3) of FOIL has long essentially provided that FOIL pertains to existing records and does not require that an agency create a record in response to a request. However, with advances in information technology, courts have held that when portions of records, i.e., databases, can be extracted or generated from existing records with reasonable effort, an agency is required to do so. Amendments to that provision now include that requirement in the law itself. The new provision also states that “Any programming necessary to retrieve a record maintained in a computer storage system and to transfer that record to the medium requested...or to allow the transferred record to be read or printed shall not be deemed to be the preparation or creation of a new record.” Therefore, if a request reasonably describes records or data maintained electronically, and when extracting the data with new programming is more efficient than engaging in manual retrieval or redactions from non-electronic records, the agency is required to do so.

New Provisions Concerning Privacy

Section 89(2)(b) includes examples of instances in which records or portions of records may be withheld on the ground that disclosure would constitute “an unwarranted invasion of personal privacy.” Subparagraph (iii) of that provision stated since 1978 that an unwarranted invasion of personal privacy included “sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes.” The amendment provides that such lists may be withheld when used for “solicitation” or fund-raising purposes. The substitution of “solicitation” for “commercial” clarifies the intent of the provision since its enactment, to give state and local government agencies the authority to preclude the use of a list of persons’ names and residence addresses when the list would be used to contact citizens directly in their homes in an effort to solicit their business. In addition, when a list of names and addresses is sought, an agency may require the applicant for such a list to “provide a written certification” that the list will not be used or made available to any other person for the purpose of engaging in solicitation or fund-raising.

Maximizing Access to Records

Amendments to sections 87 and 89 require an agency to consider public access when contracting with outside vendors and when designing electronic information systems.

The amendment to section 87 prohibits an agency from entering into or renewing a contract for the creation or maintenance of records if a contract would impair public inspection or copying.

The amendment to section 89 requires, “whenever practicable and reasonable” that an agency design its information systems in a manner that permits segregation and retrieval of publicly available data “in order to provide maximum public access.” This amendment does not require an agency to expend public moneys to alter current practices or procedures. Rather, when agencies determine to change or purchase new electronic information systems, they are required to consider access to information within the systems and the protection of privacy, to ensure easy access to portions of records that are available to the public while guaranteeing the security of other portions that may properly be withheld. This provision is effective immediately (Chapter 351).

Real Property Records

A new subparagraph (iv) added to section 89(2)(c) specifies that disclosure of records involving real property, such as assessment records critical to enable individuals to ascertain the fairness of their real property tax assessment, would not constitute an unwarranted invasion of personal privacy if disclosed. Those records have historically been accessible to the public pursuant to the Real Property Tax Law, as well as FOIL. A recent judicial decision appeared to limit disclosure and created confusion and difficulties in gaining access [COMPS, Inc. v. Town of Islip, 822 NYS2d 768 (2006)]. The amendment ends the confusion and guarantees public rights of access.

County Clerks’ Fees

Various provisions in the Civil Practice Law and Rules (CPLR) deal with the fees that county clerks may charge for services that they provide. Section 8019 deals with the preparation of copies, but referred only to copies made on paper. A new paragraph (5) added to section 8019(f) states that the provisions in FOIL dealing with the actual cost of reproducing records "in a medium other than paper" serve as the standard under which county clerks may assess fees for preparing copies of records.

New Attorney’s Fees Provisions in the Open Meetings Law

An amendment to §107(1) of the Open Meetings Law is intended to improve compliance and to ensure that public business is discussed in public as required by law. Effective August 5, 2008, the law states that when it is found by a court that a public body voted in private “in material violation” of the law “or that substantial deliberations occurred in private” that should have occurred in public, the court “shall award costs and reasonable attorney’s fees” to the person or entity that initiated the lawsuit.

The mandatory award of attorney’s fees would apply only when secrecy is the issue. In other instances, those in which the matter involves compliance with other aspects of the Open Meetings Law, such as a failure to fully comply with notice requirements, the sufficiency of a motion for entry into executive session, or the preparation of minutes in a timely manner, the award of attorney’s fees by a court would remain, as it has since 1977, discretionary.

The intent of the amendment is not to encourage litigation. On the contrary, it is intended to enhance compliance and to encourage members of public bodies and those who serve them to be more knowledgeable regarding their duty to abide by the Open Meetings Law.

2007 News

2006 News

Agencies Must Receive and Respond to Request Via Email When Able

Legislation adopted in 2006 (Chapter 182) amending the Freedom of Information Law requires the Committee on Open Government "to develop a form, which shall be made available on the internet, that may be used by the public to request a record". The new law further requires as follows:

"All entities shall, provided such entity has reasonable means available, accept requests for records submitted in the form of electronic mail and shall respond to such requests by electronic mail, using forms, to the extent practicable, consistent with the form or forms developed by the Committee on Open Government pursuant to subdivision one of this section and provided that the written requests do not seek a response in some other form."

This means that if an agency has the ability to receive requests for records from the public and transmit records by means of email, it will be required to do so. Therefore, to implement the amendment, agencies should designate an email address for purposes of receiving requests for records via email.

Forms for requesting records and responding to requests for records via email are available below.

Email Request Form

Form for Response to Email Requests

Courts Gain Additional Authority to Award Fees

On August 16, 2006, Governor Pataki signed into law, effective immediately, legislation that broadens the authority of the courts to award attorney’s fees when government agencies fail to comply with the Freedom of Information Law (S. 7011-A, Chapter 492).

While the law has generally been properly implemented, situations arose in which denials of access to records were unreasonable or in which those seeking records faced inordinate delays. The problem was that, if a lawsuit was initiated, a condition precedent to the award of attorney’s fees involved the need for a court to find that the records sought were of clearly significant interest to the general public. Often, however, the records at issue might have affected one or perhaps few members of the public, and in those cases, there was no possibility that those persons could recover the cost of going to court, even if an agency failed to comply with law.

Under the amendments, when a person initiates a judicial proceeding under the Freedom of Information Law and substantially prevails, a court has the discretionary authority to award costs and reasonable attorney’s fees when the agency had no reasonable basis for denying access to records, or when the agency failed to comply with the time limits for responding to a request.

This legislation, coupled with last year’s amendments involving the time for responding to requests (see explanation of new time limits for response below), as well as the legislation involving the use of email to seek and obtain records, will enhance compliance with the Freedom of Information Law and the public’s right to know.