Consulting with an attorney well-versed in FOIL matters can help at every stage of fighting for records under FOIL, from drafting an effective request to appealing an agency decision to filing a lawsuit if necessary.
What is FOIL?
FOIL is essentially the New York State version of the federal Freedom of Information Act. The statute was codified into law pursuant to the Public Officers Law in the 1980s, and in certain areas provides for easier access to records than its federal counterpart. An example of a FOIL request and an overview can be seen by clicking on the following link: Freedom of Information Law (FOIL) Requests (ny.gov)
Who Benefits from FOIL?
FOIL can benefit anyone seeking records from various state and city agencies, whether it be a school document from 75 years ago, agency data regarding specific matters, or for transparency. It may help you in your criminal or civil case, on an article you are writing, for the sake of government transparency, or with documents for insurance claims, such as a police report, investigative notes, and so on.
Examples of FOIL and who might make them
Records can be obtained from public authorities, economic development agencies, police departments, and the State Legislature. Records produced in response to a FOIL request can include spreadsheets of salaries, internal emails or text messages from work phones, autopsies, procurement contracts, agency budgets, elected official schedules, liquor license applications, deleted social media posts, or restaurant inspections, among many other possibilities.
A few examples are:
Seeking records from the Department of Education regarding teachers who have sought religious accommodations. In one case, our client requested all requests made by teachers that sought days off from work due to a religious holiday and were denied.
Seeking records from the Department of Education regarding school records of parents. In this case, the Department of Education was asked to retrieve school report cards of the requester’s parents from the 1940's. The records were ultimately found and given to the requester.
Seeking police records regarding data relating to arrests in a precinct. In such request, data needed to be specifically asked for -- the police needed to know exactly what they were supposed to provide. In one example, a requester requested data related to gang activity in certain precincts within a specific timeframe. The NYPD produced that data.
Media-related matters and those designed to test or ensure government transparency.
Documents from your town, such as public plans, water sheds, and public minutes of town meetings.
To obtain the information sought in your request, it’s important to know exactly which documents you are entitled to and to be as specific as possible in your request. Agencies are not expected to want to give you documents. You need to make the request hard for the agency to refuse to produce them. It's always helpful to be respectful in your requests and communications, even if your request is initially denied. Below are examples of records which are entitled to under FOIL and those excluded under the statute.
Records of police data when it is not an active investigation or would affect future related investigations or proceedings
Internal deliberative communications between members of agencies
Street camera footage of a crime or showing a motor vehicle accident
Final agency determinations from many agencies across the city and state
Records from active law enforcement investigations that can interfere with the investigation
Overly broad requests, in which the agency can argue that they do not understand what you are exactly seeking. Do not rely on the agency to assist you in articulating your request, do your research!
Unclear requests, in which the agency can argue that they do not understand your request
When making a FOIL request – there are many samples on the web, no magic language. The key is being clear in identifying the records you seek.
A fee may be added on to a FOIL request depending on the records being provided. You can be charged a maximum of 25 cents per page (if the records are physically held), and that can add up quickly. You can also be charged for producing CDs, which typically cost a few dollars each. It is suggested that you do not ask for all documents. Keep the request to what you actually need.
After submitting a FOIL request, you will receive an acknowledgment of the request within 5 days of your request (as required by law). Most agencies will give you a unique FOIL identifying number and a timeframe as to their anticipated response to your request. If the expected response time is very long, a reason will be given. However, since there is no real enforcement of an agency's arbitrary timeline, they may extend it multiple times.
If the agency denies the records requested or heavily redacts documents that you feel you are entitled to receive unredacted, you can appeal. Appeals must be filed within 30 days of the denial which may be a redacted production. If the agency hasn’t responded at all or within the required time, you can appeal what is called a “constructive denial,” but this is a tricky road. If your appeal is denied, you will have to sue the agency pursuant to Article 78 of the Civil Practice Law and Rules.
If your request is denied, don't give up. Agencies expect you to stop fighting after a denial, and especially after they deny your appeal. Unfortunately, sometimes getting your FOIL Request satisfied is a war of attrition. If you are willing to, you should keep fighting through litigation.
When your FOIL request is denied, you are given 30 days to appeal that denial. Make sure to keep track of the deadline, because once that deadline has passed without an appeal, the agency will use this as a reason to ensure that your request is considered null. Instead, mark the date of the denial in your calendar and appeal it promptly. It is advisable to not just state that you appeal the decision, but to argue why the denial is unjustified.
Relying on cases or past decision by an organization called the Committee on Open Government, and using those opinions in your appeal, greatly increases your odds of winning on appeal.
Once your appeal has been submitted, the agency has ten business days to respond. If they grant your request, they will advise you as to their timeline for producing the documents or just make a production. If they do not respond or they deny your appeal, you will need to commence a Special Proceding (lawsuit) in New York State Supreme Court under Article 78 of the CPLR to force the agency to produce the records that you seek. At that point, it will be up to a judge to determine whether you are entitled to the records you are seeking. Additionally, based on the circumstances, you may be entitled to an award of your costs and attorney’s fees if you win your lawsuit.
While there are several reasons that a FOIL request can be denied, the three most common
reasons in our experience are:
The requested records are not reasonably described.
This means that your request was too broad or unclear as to what you were seeking. As a pro tip, even if it looks clear to you, have a friend or family member read it. The agency is looking for a way to avoid producing documents at all. Do not give them that excuse.
The request is unduly burdensome to the agency.
This means that the request would require the agency to produce way too many documents or look in too many places to gather the records. However, under certain circumstances FOIL requires that an agency give the requestor the opportunity to hire a third party to remove the burden of culling and redacting the records.
The request falls under the law enforcement exemption, meaning it would interfere with a pending investigation or ongoing judicial proceeding.
If the police investigation is ongoing, or the police claim it is ongoing, your records may be denied because releasing the records could interfere with the investigation. However, the agency still has to meet its burden in demonstrating that the release of records could actually interfere with the pending investigation/proceeding.
Be clear about what you are looking for and be prepared to argue why you are entitled to the documents.
Sample FOIL request
Sample Administrative Appeal