FOIL's Every Wrinkle
New York's FOIL defines a record as "any information kept, held, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."
When the New York Legislature enacted its Freedom of Information Law in 1974, electric typewriters and copiers were cutting-edge technology.
FOIL, designed to give the public access rights to government records, grew out of the nation's Watergate scandal as well as a pair of federal laws, the Sunshine Act and the Freedom of Information Act. The main thrust? Guarantee the public's right to know about the activities of New York government. At the time, many state agencies maintained records by hand, sometimes producing copies on carbon paper. Though difficult to imagine today, when mass storage, scanning devices and instantaneous e-mail transmission are the norm, the vast majority of requests for records in the 1970s were fulfilled by simply pulling documents out of filing cabinets.
Advances in technology have revolutionized the way society -- including nearly every state agency -- creates, stores, protects and shares information. For the most part, freedom of information laws have adapted to the changes, helping to facilitate maximum public access to governmental records while protecting against disclosures that threaten privacy or security. As a result, it is critical that decision-makers within state agencies and information technology departments understand the type of information that can be requested, disclosed and protected, and be prepared to deliver it in the most efficient manner possible.
When Congress enacted the Freedom of Information Act in 1966, the Internet and e-mail hadn't entered the conceptual stage. But technology has made federal FOIA and state FOIL programs vastly more usable, prompting amendments to the laws to take better advantage of technological advances. For example, agencies now can simplify and streamline communications by exchanging information and processing requests for information through e-mail and online.
In 2005, New York became the first state to require by law that its agencies accept FOIL requests via e-mail and transmit records in the same manner whenever they have the ability to do so. This revolutionized the relationship between the public and the government by making it increasingly easy and routine for people to request and receive records.
Perhaps just as significant, government employees save valuable time; instead of standing at the photocopier, they need only hit the send key on their keyboards. This advance also helps reduce costs for fulfilling FOIL requests.
To enhance the public's ability to make requests via e-mail and agencies' ability to comply, the New York State Committee on Open Government's Web site, at www.dos.state.ny.us/coog/new.htm, posts a model e-mail request form and a model agency response encompassing a variety of potential options.
Four years ago, when the committee first launched its site, it received approximately 122,000 hits. In its second year, hits grew to 1 million. Last year, the site received more than 1.8 million hits from more than 104,000 unique visitors. Even more notable, approximately two-thirds of the hits came after hours or on weekends, suggesting that many people with a need to know about their right to gain access to government records are making good use of the site and the guidance it offers.
The expanding use of the Web by the public also offers a potential for handling records requests. By monitoring requests and posting frequently requested records on the Web, an agency can eliminate the need to respond to many FOIL requests because the information is accessible 24x7.
One of the most significant areas of FOIL for IT managers is system design. Often a database contains items that must be made available to the public, and others that agencies can withhold.
For example, a payroll database would include names, titles, salaries, Social Security numbers and deductions for items such as charitable contributions, alimony and child support. The name, title and salary information would be accessible under FOIL, but the other information -- unrelated to the employees' duties -- would not. If the payroll database were requested, an agency could exclude that second set of data on the grounds that disclosure would constitute "an unwarranted invasion of personal privacy."
To make data easily accessible, system designers should develop systems so that agencies can quickly and easily segregate public from private data. In this way, IT professionals can help to make freedom of information laws more useful for the public and less burdensome for the government.
When a public interest group requested a database from New York City concerning lead poisoning among children, some data could be withheld to protect privacy. But when the group requested the publicly accessible data in electronic format, the city indicated that it had no method of easily segregating the items. The city contended that it would have to reprogram the database and that would be the equivalent of creating new records, which it was not required to do. Instead, the city offered to prepare a printout but only after manually deleting personally identifiable information -- a process that could take weeks.
The interest group rejected the offer and filed a lawsuit. During the ensuing trial, a city systems programmer demonstrated in the courtroom that by entering queries into a PC, he could segregate the requested information in the database from data to be withheld to protect privacy. This exercise took about an hour. Based on that outcome, the court concluded that the agency was not creating new records but rather extracting or generating portions of an existing record and so had to fulfill the request to comply with FOIL. The judge in the case also noted that it made more sense to spend an hour at the keyboard than to assign an employee the labor-intensive task of manually deleting text before creating a printout.
Every state has a records access law. Although these statutes vary, they typically apply to all units of state and local government, including state agencies, public corporations and authorities, and any other entity that performs a governmental function for the state or for a unit of local government within it.
In New York, FOIL applies to government records created with pen and paper as well as generated, received or maintained electronically.
It is important to note that the law pertains to existing records. FOIL requests are not vehicles for the public to cross-examine government officials or employees. Similarly, an agency is not required to answer questions or to create a new record in response to a FOIL request -- the denial reasoning that New York City originally used in responding to the lead poisoning data request.
All government records are available to any requestor unless an exception allows an agency to deny a request. Common sense dictates most exceptions: Could harm arise from the information's disclosure? For example, if releasing a record would be damaging to an individual or preclude an agency from carrying out its duties, it is likely that the state might withhold some or all of a record.
A person requesting records is not required to provide a reason or indicate intended use. The only instance in which the purpose of a request is relevant in New York is when it includes a list of names and residence addresses. In that case, the agency can seek an assurance that the list will not be used for commercial or fund-raising purposes and can deny the request if it expects such use is planned.
In New York, an agency can charge up to 25 cents per photocopied page for a requested record or the actual cost of duplication for photographs, computer disks and or tape recordings, for instance. But an agency generally cannot charge for research or processing time or for records transmitted via e-mail.
Additionally, anyone can inspect accessible records at no charge. But if portions of a record can be withheld, an agency can require payment to produce edited copies of the record. If portions of electronic records can be reasonably generated or extracted electronically, the fee must be based on the cost of reproduction, such as the cost of a disk. Frequently, agencies choose not to charge at all.
Although the vast majority of agencies now maintain records electronically, in some instances they may not. And, even if the records are available electronically, a particular request might specify a different format. Although FOIL does not specify the manner in which records must be maintained, the law does require that if an agency has the reasonable means to convert a record from one format to another to meet a request, it must do so.
For instance, in 1980, a New York resident learned that an assessor's office maintained a record that he was seeking in both an electronic format and on paper. When the office refused to supply the electronic record, the individual successfully sued for the data tape. The court ruled that the medium in which a record is stored has no impact on someone's right of access to the information.
FOIL requires that each state agency in New York designate at least one records access officer, to whom all requests should be directed. A request for information should describe the record being sought with sufficient detail to let agency staff locate it. Often, an agency will designate an e-mail address specifically for FOIL work.
IT departments rarely receive these requests directly. In New York, each designated records access officer coordinates an agency's response to requests and consults with IT staff on the means by which items can be reproduced, the format and reproduction costs. In short, the IT team might have to deal with the requests, but it generally does not have responsibility for determining rights of access or authority to withhold records. That responsibility rests with the records access officer and the agency's legal counsel.
Tracking FOIL Performance Rates
State agencies have been asked to file reports with New York's Committee on Open Government, covering six-month periods and identifying the number of:
- FOIL requests received, broken out by paper and e-mail requests
- Requests fully answered within five business days of receipt
- Requests for which an acknowledgment letter was sent indicating the need for up to 20 business days to respond
- Requests answered within 20 business days
- Requests for which an acknowledgment letter was sent indicating necessity to take more than 20 business days to respond (and the reasons given for delays and how frequently each reason was given)
- Requests answered within 40 business days of acknowledgment
- Requests answered within 60 business days of acknowledgment
- Requests pending or unanswered after more than 60 business days (and the reason for each delay)
- Appeals received
- Appeals determined in full within 10 business days
Format Is No Barrier
A 1990 lawsuit involving the New York City Department of Buildings established the state's guiding principle to responding to FOIL requests: "If you can, you must." The department had refused to supply a database to a requestor in an electronic format but offered to provide a printout for a fee of $10,000. A state court ruled that the database was a record and ordered the department to give it to the requestor. The upshot is that if an agency has the ability to furnish a record in a desired format and the applicant is willing to pay the requisite fees, then the agency must do so. In this case, the cost of reproduction came to $38 -- a far cry from the $10,000 to create the printout.