Freedom of Information Law Change Prevents Unnecessary Delays

Governor Andrew Cuomo recently signed a bill that will reform the Freedom of Information Law (FOIL) to potentially speed up obtaining public records. The measure passed with unanimous support in both the New York Senate and the Assembly in June and will become effective in the spring of 2017.

Our Freedom of Information Law is a tool that anyone can use. The legislation establishing the FOIL process was passed in 1978. It clarified the public’s right of access to public records and established a committee to provide guidance to both the public and to governmental entities. Anyone in search of public documents may file a FOIL request to the governmental entity that has the document. Each request is evaluated on a case-by-case basis. Getting the information is not always guaranteed, however, because exceptions exist to FOIL. For example, if sharing information would interfere with a criminal investigation or would infringe on personal privacy, a FOIL request can be denied. 

If the information request is denied, the entity or individual pursuing the FOIL request can take it to court to argue that the denial was improper. If the court rules in favor of the request, the agency, under current law, can drag its feet and take up to nine months to perfect an appeal to that decision. The bill that was recently signed shortens the appeals process. It still requires the agency to file a notice of appeal within 30 days of the court’s decision, but if the agency does not perfect the appeal within 60 days of the notice of appeal, the appeal will be considered abandoned.

The legislation cuts the appeals process from potentially nine months to three months. The change in law could reduce litigation expenses and hopefully will provide timely resolution of FOIL requests. This gives smaller groups and individuals a chance against agencies or municipalities that may try to wait out the process in hopes that those in pursuit will get tired of waiting. 

As part of the original law, the Department of State Committee on Open Government was created to oversee the implementation of FOIL. Though the executive director of the committee, Bob Freeman, has been the face of FOIL and a champion for the law’s intent since its inception 40 years ago, the committee is composed of 11 members — five from government and six from the public. The five government members are the lieutenant governor, the secretary of state, the commissioner of general services, the director of the budget, and one elected local government official appointed by the governor. Of the six public members, at least two must be representatives of the news media. 

When questions arise under FOIL, the committee staff can provide written or oral advice and attempt to resolve controversies outside of the court system. Sometimes these opinions help shorten the process for both agency and the entity filing the request and even prevent the case from going through the appeals process. For questions concerning FOIL, visit the Department of State’s Committee on Open Government website: http://www.dos.ny.gov/coog/index.html. The site has detailed information that answers questions about obtaining government records and the open meetings law. There is also a frequently asked questions page and a series of 27 educational videos to educate the public about this law and the law on open meetings.            

William (Will) A. Barclay is the Republican representative of the 120th New York Assembly District, which encompasses most of Oswego County, including the cities of Oswego and Fulton, as well as the town of Lysander in Onondaga County and town of Ellisburg in Jefferson County. Contact him at barclaw@assembly.state.ny.us, or (315) 598-5185.

Governor Andrew Cuomo recently signed a bill that will reform the Freedom of Information Law (FOIL) to potentially speed up obtaining public records. The measure passed with unanimous support in both the New York Senate and the Assembly in June and will become effective in the spring of 2017.

Our Freedom of Information Law is a tool that anyone can use. The legislation establishing the FOIL process was passed in 1978. It clarified the public’s right of access to public records and established a committee to provide guidance to both the public and to governmental entities. Anyone in search of public documents may file a FOIL request to the governmental entity that has the document. Each request is evaluated on a case-by-case basis. Getting the information is not always guaranteed, however, because exceptions exist to FOIL. For example, if sharing information would interfere with a criminal investigation or would infringe on personal privacy, a FOIL request can be denied. 

If the information request is denied, the entity or individual pursuing the FOIL request can take it to court to argue that the denial was improper. If the court rules in favor of the request, the agency, under current law, can drag its feet and take up to nine months to perfect an appeal to that decision. The bill that was recently signed shortens the appeals process. It still requires the agency to file a notice of appeal within 30 days of the court’s decision, but if the agency does not perfect the appeal within 60 days of the notice of appeal, the appeal will be considered abandoned.

The legislation cuts the appeals process from potentially nine months to three months. The change in law could reduce litigation expenses and hopefully will provide timely resolution of FOIL requests. This gives smaller groups and individuals a chance against agencies or municipalities that may try to wait out the process in hopes that those in pursuit will get tired of waiting. 

As part of the original law, the Department of State Committee on Open Government was created to oversee the implementation of FOIL. Though the executive director of the committee, Bob Freeman, has been the face of FOIL and a champion for the law’s intent since its inception 40 years ago, the committee is composed of 11 members — five from government and six from the public. The five government members are the lieutenant governor, the secretary of state, the commissioner of general services, the director of the budget, and one elected local government official appointed by the governor. Of the six public members, at least two must be representatives of the news media. 

When questions arise under FOIL, the committee staff can provide written or oral advice and attempt to resolve controversies outside of the court system. Sometimes these opinions help shorten the process for both agency and the entity filing the request and even prevent the case from going through the appeals process. For questions concerning FOIL, visit the Department of State’s Committee on Open Government website: http://www.dos.ny.gov/coog/index.html. The site has detailed information that answers questions about obtaining government records and the open meetings law. There is also a frequently asked questions page and a series of 27 educational videos to educate the public about this law and the law on open meetings.            

William (Will) A. Barclay is the Republican representative of the 120th New York Assembly District, which encompasses most of Oswego County, including the cities of Oswego and Fulton, as well as the town of Lysander in Onondaga County and town of Ellisburg in Jefferson County. Contact him at barclaw@assembly.state.ny.us, or (315) 598-5185.