Nearly anyone who can read a newspaper understands the meaning of a FOIL or FOIA request. FOIA refers to the Freedom of Information Act, which allows a requester to obtain documents from federal agencies, while its state-based analogs, the Freedom of Information Law and other similar laws, apply in the various states. Simple enough at a high level, but even practicing lawyers with some familiarity with the statutes tense up when a client gets involved with FOIA/FOIL because of procedural twists and the more complicated details related to exceptions to production obligations. Using the New York FOIL statute as a basis for discussion, this brief article covers some of the basics that a lawyer practicing in the area should know.
What Is It and to What Entities Does It Apply?
Like all of its kin statutes, FOIL is a transparent-government law designed to permit members of the public to access government agency documents. Proceeding from the notion that a more accountable government is a better government, FOIL operates from the presumption that documents in the possession of a government agency must be produced upon request unless the documents fall within certain narrowly drawn exceptions, which are discussed below. "Agency" is defined broadly in section 86(3) of the New York FOIL statute: it refers to any state, municipal, or government entity. The term applies to public authorities and public corporations, and it may also apply to not-for-profit entities that perform government functions or that are funded by the government. Significantly, FOIL does not permit the FOIL requester to compel testimony or to require that the agency create a document to satisfy a request. FOIL only mandates that the agency produce preexisting documents. If the information or data sought does not exist in a document, the FOIL statute is unavailing.
The FOIL statute is a tool for anyone seeking government agency documents. FOIL does not require that the party requesting records make any showing of need, good faith, or even legitimate purpose. Likewise, it does not matter whether the requester is a potential litigant against the agency, a significant tool in the hands of a lawyer who seeks documents before commencing litigation, which is subject to the stringent rules of discovery practice.
FOIL tightly choreographs the timing of requests and responses. When an agency receives a request, the law mandates that a response be supplied within 5 business days of receipt. Within that time, the agency has three options, each of which requires a written response. First, it may grant or deny the request. Second, if an agency needs more than 5 days to respond, it must acknowledge receipt of the request within that time and provide an approximate date, not to exceed an additional 20 business days, indicating when it believes that the request will be granted or otherwise decided. The approximate date must be reasonable under the circumstances. Third, when the agency needs more than an additional 20 business days, normally because of the volume of the documents requested, the response must include an explanation for the delay and, further, it must provide a date by when the request will be satisfied or denied. If the agency fails to respond in accordance with these proscriptions, the requester may consider the request to have been constructively denied. FOIL Section 89(4) gives the aggrieved requester 30 days to appeal in writing to the head, chief executive, or governing body of the agency involved. At that point, the agency has 10 business days after receipt of the appeal to fully explain in writing to the requester the reasons for the denial. Failure to determine an appeal within 10 days of receipt constitutes a denial of the appeal and, in that circumstance, the requester has exhausted his or her administrative remedies and may thereafter initiate a challenge to the denial of access under Article 78 of the New York Civil Practice Law and Rules. Practitioners and aggrieved FOIL requesters are wise to remember that an Article 78 proceeding must be commenced within four months of the challenged agency decision.
Exceptions to Production
Without doubt, the greatest amount of ink consumed on the FOIL statute is related to the enumerated exceptions that allow an agency to withhold documents requested under FOIL. Whether in judicial decisions or in advisory opinions from the New York State Committee on Open Government, the contours of the exceptions attract the most attention. This interest arises largely from the fact that agencies stretch for justifications for why they should not have to produce documents. Also, the large volume of writing on the topic stems from the obscurity of the exceptions. Further complicating matters for agencies, the law places the burden on the agency to prove the application of an exception with specificity. The final portion of this article focuses on the nine principal exceptions. They are set forth below, with brief commentary, in the order in which they appear in New York's FOIL statute, section 87(2).
An agency may deny access to records to the extent that:
- they are specifically exempted from disclosure by state or federal statute. Think, for example, of the application of HIPAA to an individual's medical records. Also, this subsection has been uniformly interpreted as allowing for documents to be withheld on the basis of the attorney-client communication privilege and its related doctrines;
- they would constitute an unwarranted invasion of personal privacy. This is an oft-litigated provision. It permits withholding sensitive information related to employment, medical, or credit history. It also allows withholding information of a sensitive personal nature that would result in economic or personal hardship to the subject party. The personal privacy exception may allow for withholding contact information, such as an email address;
- they would impair contract awards or collective bargaining negotiations. This exception arises in connection with municipalities and other government agencies when they negotiate with vendor contractors and unions;
- they contain trade secrets or would cause substantial injury to the competitive position of a commercial enterprise that has submitted its confidential information to an agency. This exception, like that found in exception number three, allows an agency to withhold from FOIL production sensitive confidential commercial information that the agency received in filings from companies;
- they contain information gathered for law enforcement purposes that would interfere with investigations or judicial proceedings or would reveal confidential sources or criminal investigative techniques. This exception has been employed by the criminal defense bar, but with noticeably limited success;
- they would, if disclosed, potentially endanger the life or safety of any person. This exception once served as a "catchall" provision (without much definition) but has been increasingly used to insulate from disclosure documents revealing "critical infrastructure" information that would be dangerous if available to terrorists or other criminal actors;
- they are internal agency materials that contain opinions, deliberations, or other nonstatistical, nonfactual data. This exception has generated a tremendous amount of judicial decisions and advisory opinions, in part because this subsection reads like a double-negative riddle. (The reader is encouraged to review section 87(2)(g) as a gruesome example of legislative tortuosity). Stated simply, this exception allows an agency to withhold communications between agency actors that are nonfinal, deliberative expressions of opinion. This exception does not apply to hard statistical or factual pieces of information or data, which must be produced. Lawyers have made livings from redacting what is opinion from what is fact and in negotiating the contours of this exception;
- they contain examination question or answers. One wonders how many exam-takers have the chutzpah to serve a FOIL request on a state agency administering an exam, but this exception would thwart that crafty student;
- they would, if disclosed, jeopardize an agency's ability to protect its information technology assets, whether electronic information systems or the hard infrastructures. As with exception number six, this exception has been interpreted to protect information about critical infrastructures from falling into the hands of criminals who would do injury to governments or state actors.
For additional guidance on these points of procedure and substance, the New York Committee on Open Government website is quite helpful. It has a well-indexed section containing hundreds of advisory opinions on most of the topics discussed here. Of course, be comfortable reaching out to Venable if there is any way our firm can assist.