Don’t Get FOILed by FOIL Requests: Be Prepared to Move Fast

Don’t Get FOILed by FOIL Requests: Be Prepared to Move Fast

Last updated on July 22nd, 2022

Updates to New York’s Freedom of Information Law (FOIL) on March 22 (and retroactive to December 29, 2021) are designed to make it easier to access public records by speeding up responses to requests for information and providing more detailed justifications for denials. Are your municipal agencies and public authorities ready to respond?

New York state leadership is taking responsibility for transparency seriously, as seen by not one but two FOIL amendments within the last year – one at the end of 2021 and another in March of 2022. FOIL is intended to provide the public – whether it’s a taxpayer, a reporter, a defense attorney, or someone else – with access to public records from government agencies.

As a result of amendments, ABC 50 Now (via reported FOIL requests now go directly to the agency managing the information (rather than starting with an Executive Chamber review) and each agency must post commonly requested information online to eliminate the need for a FOIL request.

Section 86 defines agency as “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”

FOIL is overseen by The Committee on Open Government. Its Model Rules for Agencies, Section 5 Requests for public access to records details how and when an agency should respond to a FOIL request. Some noteworthy items:

  • A request can be verbal if records are readily available on the internet.
  • Within five days of receipt of a request, a response must be provided. This includes:
    – Asking for more details;
    – Granting or denying the request;
    – Acknowledging receipt of the request and providing an approximate date for granting or denying the request (which must be within 20 business days from the acknowledgement unless a written explanation is provided about why there is a delay and when the request will be fulfilled); or
    – If after acknowledging the request, disclosure can’t be met by the date noted, a written explanation for the delay and the date the request will be granted must be provided.
  • Several factors are used to determine a reasonable time to fulfill a request, including how big the request is, how easy it is to get the records, request complexity, the number of requests received by an agency, and more.
  • Failing to comply with time limits is construed to be a denial that can be appealed. This includes:
    – Failing to provide access to requested records;
    – Failing to acknowledge in writing receipt of request or denial within five business days;
    – Failing to provide an approximate date for fulfilling the request in whole or in part;
    – Approximating a date for fulfilling the request that is unreasonable;
    – Failing to respond within a reasonable time after the approximate date provided or within 20 days of acknowledging receipt of a request;
    – Granting a request within 20 business days of acknowledging receipt of the request, but failing to do so and failing to explain why in writing and when the request will be granted in whole or in part;
    – Failing to grant a request and provide a written explanation why and when it will be granted in whole or in part; or
    – Responding to a request stating more than 20 business days is needed and stating when the request will be fulfilled but that date is unreasonable based on the request.

Other changes related to the updated law include the elimination of a judicial hearing for a public records request as long as an investigating agency confirms release of information could hurt investigations or lives (Bliss, 2022, What’s more, failing to fulfill a request and having a viable reason for doing so could result in having to pay a requestor’s attorney’s fees should the matter be litigated.

While FOIL has been around since the 1970s, renewed focus on transparency and trust in government as a New York state priority likely means the recent law changes are a beginning rather than an end, and more is likely to come in terms of enforcement and precedence. New York’s Committee on Open Government website has more information to help you learn about and navigate FOIL (including training materials). It’s worth a visit every once and a while to ensure compliance.

While this article reviews key highlights, we need to say and can’t emphasize enough that this is a legal matter. If your agency is subject to FOIL, you should seek legal counsel to ensure compliance. In the meantime, it is important to recognize that a broad spectrum of subjects – including finance-related ones – are subject to FOIL. That makes using a respected, professional accountant with a track record for excellence even more important – why not give RBT CPAs a call to see what we can do for you?