Freedom of Information Law Training Module 6. Freedom of Information Law What is FOIL? New York...

Freedom of Information LawTraining Module 6

Freedom of Information Law

What is FOIL?New York Freedom of Information Law

Establishes procedure to ensure citizen’s right of access to government recordsSWCD’s are political sub-divisions of state government and must abide by FOIL

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Title is MisleadingDoes NOT deal with access to information but access to recordsIt is NOT a vehicle to give the public the right to cross-exam public officialsDeals with existing records – not required to create a new record

FOIL


FOILWhat is a record?

RECORD is any information in any physical form whatsoever, that is kept, held, filed, produced or reproduced by, with or for a government agency

– as defined by NYS law in 1978


Proactive DisclosureFOIL based on presumption of access

Burden of proof lies on District to show why document shouldn’t be disclosed

Proactive Disclosure Making records that are clearly public, frequently requested, and important available on websites (minutes, maps, etc.)

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Required to have a written FOIL Policy District can follow their county policyIf different from county’s, it should be vetted through the County AttorneyDistrict should designate a FOIL Officer who handles all requests

FOIL Policy

http://www.dos.ny.gov/coog/modelregs_publicaccesstorecords.html

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DO NOT RELEASE Records that have potential to harm:

Government in terms of its ability to do its job on behalf of the publicPrivate Company in relation to its competitionSomeone in terms of invasion of personal privacy (SS number, home address, telephone number, etc.)

Exceptions


Exceptions – AEMAgricultural Environmental Management:

Information gathered under AEM is deemed confidential by NY AGM Law and EXEMPT from FOIL Some information gathered could be incriminating or documenting illegal activity (e.g. documenting lack of records for pesticide application) Information re-packaged to develop a report, is no longer exempt


Exceptions – NRCS ProgramsUSDA Section 1619 Confidentiality Clause:

Section 1619 – 2008 Farm BillProhibits disclosure of certain information by the USDA and its cooperators:A) information provided by an agricultural

producer/owner of Ag land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in the programs of the NRCS

B) Geospatial information otherwise maintained by the USDA about agricultural land or operations


Exceptions – Inter/Intra Agency MaterialsMaterials between or among government offices do NOT have to be disclosed.Court of Appeals ruled four instances where disclosure is required:

Statistical or factual tabulations or data – includes estimates & projections – statement of factsInstructions to staff that affect the publicFinal District policy or determinationsExternal audits

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What is a RequestVerbal, written or electronic acceptableMust be reasonable and describe records being requestedPhone Book ExampleReasonable – records of people last name SmithUnreasonable – records of people first name Jane

Requests


Responding to RequestsResponse required within 5 business days:1. Grant access2. Deny access in writing with

explanation of denial and inform applicant of right to appeal

3. Acknowledge receipt of request and provide approximate date (within 20 business days) request will be met

4. Acknowledge receipt of request, provide explanation for delay beyond 20 days, and give ‘date certain’ for delivery


Sample Letter – Approval Dear:

Your request for information under the Freedom of Information Law (FOIL) was received in our office on DATE. I am pleased to enclose a copy of the information requested.

Even though the Freedom of Information Law permits us to charge you for copying this information, we are sending it free of charge as a public service.

If you have any questions about this information, please contact FOIL Coordinator, NAME at PHONE #. Thank you.

Sincerely,Name, Title


Sample Letter – Extending TimeDear:

Your request for information under the Freedom of Information Law (FOIL) was received in our office on DATE. I am not able to respond to your request within the time limit set forth in the law because of REASON (e.g. the broad nature and extensive scope of the request…other reasons could also exist). I am therefore extending the response timeframe and will comply with your request on or before DATE (may extend timeframe for 20 business days).

If you have any questions about this information, please contact me at PHONE #.



Sample Letter – DenialDear:

Your request for information under the Freedom of Information Law (FOIL) was received on DATE. Your request is denied because the information you seek does not exist in our office. After a diligent search, I have not been able to locate the records you seek with the information given. If you have any additional information regarding the description, location, content, or date of the record you seek, please call or write so I can continue my search on your behalf.

Pursuant to provisions of FOIL, you have a right to appeal this decision in writing to (name individual and address). Your letter must identify a reason for your appeal. Further, you may have a right to receive attorney’s fees and damages as provided in the FOIL if, after judicial review, the court determines that we have not complied with the law and orders a disclosure of the record you seek. If you have any questions please contact me at PHONE #.



RequestsCharging Fees

Fees may be charged for copying public records

$0.25 per page for copies up to 9”x14”

Or actual cost of reproduction (cost of CD etc.)Cannot charge for the inspection of records or personnel time compiling the request unless requires over 2hrs of timeEmail should be preferred response method

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Section 2Right to Appeal

Applicant has 30 days to file an appealAppeals are filed with governing body of FOIL Officer

SWCD Board of Directors

Appeals to Denial


Appeals Responding to Appeals

District must respond to an appeal within 10 business days by;1. Making the records available 2. Or fully explaining in writing

reasons for further denialNo response considered denial of access Determination shall also be submitted to Committee on Open Government (COOG)


Appeals Enforcement and Attorney’s Fees

If appeal denied, applicant can take to courtCourt can award attorney’s fees to be paid by SWCD if applicant “substantially prevails”Court has to find that SWCD either:1. Had no reasonable basis for

withholding record2. Or failed to comply with time

limits for responding


FOIL Video


Additional Resources

Resource Available Where to Find ItFOIL – Public Officers Law, Article 6 FOIL

Model forms for requests & responses

Sample Request / Sample Response

Regulations promulgated by COOG Committee on Open Govern

ment“Your Right to Know” guide on FOI & Open Meeting Laws

Your Right to Know

Personal Privacy Protection Law Info You Should Know

Educational Video on FOIL & OML FOIL Video

FOIL Model Rules/Policy Guidance FOIL Policy Guidance

FOIL Frequently Asked Questions FOIL FAQ

http://www.dos.ny.gov/coog/foil2.html

http://www.dos.ny.gov/coog/emailrequest.html

http://www.dos.ny.gov/coog/emailresponse.html

http://www.dos.ny.gov/coog/regscoog.html

http://www.dos.ny.gov/coog/regscoog.html

http://www.dos.ny.gov/coog/Right_to_know.html

http://www.dos.ny.gov/coog/shldno1.html

http://www.dos.ny.gov/video/coog.html

http://www.dos.ny.gov/coog/modelregs_publicaccesstorecords.html

http://www.dos.ny.gov/coog/freedomfaq.html

Freedom of Information Law Training Module 6. Freedom of Information Law What is FOIL? New York...

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