The New York Freedom of Information Law (FOIL) is a series of laws designed to provide the public with access to public records of governmental bodies in New York.
As we previously reported, FOIL was amended in 2020 as part of the legislation that repealed Civil Rights Law § 50-a, the law that prohibited disclosure of law enforcement disciplinary records.
After some back and forth between the New York legislature and Gov. Kathy Hochul, FOIL has now been amended again.
On December 17, 2021, A5470 was delivered to Hochul. As written, the bill amended FOIL to require an agency that is considering asserting an exemption under FOIL on the grounds that disclosure of responsive records would interfere with a judicial proceeding receive permission from the presiding judge in the judicial proceeding to assert this exemption. It also amended Civil Rights Law § 50-b to specify that only portions of a report that identify a victim of a sexual offense are exempt from disclosure, rather than the entire record. Additionally, the bill specified that parties to any civil or criminal action or proceeding can use FOIL to obtain records concerning the subject action or proceeding, and that a denial under FOIL did not prohibit an individual from obtaining records through other legal means. Finally, the bill required that an agency provide particularized and specific justification for withholding records.
On December 29, 2021, Hochul technically signed the bill into law, but only after securing an agreement with the legislature that it would make significant changes to the bill. While Hochul permitted certain parts of the bill to remain untouched, other portions were completely reworked or removed entirely. By way of example, one issue cited by Hochul was that the bill’s requirement that an agency interrupt judicial proceedings. This would cause delay in the judicial proceeding and in processing the FOIL request. As a result, the legislature has been working over the last few months to further amend FOIL in alignment with the agreement made with the governor’s office.
On March 21, 2022, Hochul signed S7734, which memorializes the legislative changes Hochul negotiated with the legislature when she signed A5470 on December 29, 2021. Specifically, this law removed the requirement that a judicial hearing be held to determine whether documents related to a judicial proceeding should be withheld pursuant to a FOIL request. Additionally, the law added language to require an agency that is not the assigned investigative agency in an ongoing investigation to obtain certification from the assigned investigative agency that the FOIL-requested records may be withheld because they would impede an ongoing investigation. Finally, the new law removed language amending Civil Rights Law Section 50-b back to its original form prior to December 29, 2021.
The changes Hochul signed into law on March 21, 2022 are effective retroactively to December 29, 2021, when the original changes went into effect.
FOIL imposes strict time limitations on the responding agency. One issue that these amendments do not address is what a public agency is to do if it reaches out to the “investigating agency” in relation to the law enforcement investigation exemption and does not receive a timely response.
Another potential issue relates to the FOIL appeal process. Under FOIL, a person that is denied access to records has a right to appeal that determination internally to the agency for which it made the request, before then challenging the decision in court. However, the new amendments are silent on what a public agency is to do if the FOIL requestor appeals an initial determination where the records are being withheld pursuant to the law enforcement investigation exemption. Under those circumstances, and pursuant to the new procedure under the amendments, the agency’s decision would be in reliance on information from the third party conducting the investigation. This point bears emphasis because an agency that denies access to records based on a FOIL exemption must have a “reasonable basis” for doing so and, if it does not, would have to pay the FOIL requestor’s attorneys’ fees if the matter is litigated. Accordingly, it is unclear if the agency will automatically be deemed to have had a reasonable basis for denying access to records if the responding agency is told by the investigating agency that the exemption exists, or if the basis for that determination will include evaluating the investigating agency’s logic. Simply put, without clarification the amendment arguably creates the untenable positon where a public agency relies on a determination of the applicable of the law enforcement investigation exemption by a third party, instead of itself, but might be stuck with the consequences if that determination is not deemed to be reasonable.
Public agencies that are subject to FOIL are well advised to seek counsel from experienced counsel to ensure compliance with these amendments when responding to FOIL requests.
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