Many people have heard of New York’s Freedom of Information Law (“FOIL”) and its federal counterpart, the Freedom of Information Act (“FOIA”), but few understand how it works in practice or how to enforce the rights that those laws grant. At its core, FOIL gives the public the right to access agency records and requires agencies to “make available for public inspection and copying all records” unless specifically excepted from disclosure.

FOIL applies to every New York State and municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function. All agencies must accept written FOIL requests, and most also accept FOIL requests submitted via email or online.

When possible, FOIL requests should be directed to the agency’s “records access officer.” A FOIL request should clearly identify the documents sought, and state at the beginning that the request is made pursuant to the Freedom of Information Law. When the request is made by email, the subject line should indicate that the email contains a “FOIL Request.” This ensures that the request is seen by the proper agency personnel and is evaluated in accordance with the agency’s established FOIL procedures. This type of explicit language can also be useful in proving that the request was made pursuant to FOIL, which may come up if the requester needs to administratively appeal a FOIL denial or needs to commence an Article 78 Proceeding to compel disclosure of the requested record(s).

In preparing a FOIL request, the requester should also make sure that he or she is being as clear as possible. FOIL requests must “reasonably describe” the records sought so that the agency can properly determine what records are responsive to the FOIL request. However, the Court of Appeals has clarified that “demands under FOIL need not meet the stringent requirement under CPLR §3210 that documents be ‘specifically designated,’” meaning they need not be as descript as discovery demands in litigation. Thus, an agency may request clarification if a FOIL request is so vague that the agency is unable to determine what records are responsive. However, an agency should be careful not to deny a FOIL request on the basis that the records sought are not “reasonably described,” because the agency bears the burden of proving that a FOIL request was not “reasonably described.” Accordingly, the better course of action is for requester to be as specific as possible in his or her request, and for the agency to request clarification when needed.

If you are unsure of how to properly frame or submit your FOIL request, or if you believe your FOIL request was improperly denied, you should contact an experienced attorney for help.

Likewise, if you are concerned about how a potential FOIL violation may affect you or your business, would like help submitting a FOIL request or appeal, would like to challenge a FOIL denial in court, or if you are a member of a local government or government agency that has been accused of a FOIL violation, be sure to contact an experienced attorney for guidance.
For inquiries related to the Freedom Of Information Law, the Freedom of Information Act, the Open Meetings Law, and other Municipal Law issues, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq. at The Zoghlin Group, PLLC.

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  See Public Officers Law §87(2).

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  See Public Officers Law §86(3).

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  See Konigsberg v. Coughlin, 68 N.Y.2d 245, 249 (1986) (“Konigsberg”); Farbman & Sons v. New York City Health & Hosps. Corp., 62 N.Y.2d 75, 82-83 (1984) (“Farbman”).

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