New York’s Freedom of Information Act Amended Again | Goldberg Segalla

Key points to remember

  • New York’s Freedom of Information Act (FOIL) was originally amended on December 29, 2021. On March 21, 2022, Governor Hochul signed a new law, again amending FOIL.

  • Parts of the language approved on December 29 remained intact; other parts have been reworked or removed entirely.

  • Public bodies subject to FOIL are well advised to seek guidance to ensure compliance with these changes when responding to FOIL requests.

The New York Freedom of Information Act (FOIL) is a series of laws designed to provide public access to the public records of New York government agencies.

As we previously reported, FOIL was amended in 2020 as part of legislation that repealed Civil Rights Act § 50-a, the law that prohibited the disclosure of law enforcement disciplinary records.

After some back and forth between the New York Legislature and Governor Kathy Hochul, FOIL has been changed again.

FOIL amendments originally adopted in December 2021

On December 17, 2021, A5470 was delivered to Hochul. As written, the bill amends FOIL to require that an agency that is considering asserting an exemption under FOIL on the grounds that the disclosure of relevant documents would interfere with a legal proceeding receive permission from the judge who presides over the legal proceedings to assert this exemption. It also amended Section 50-b of the Civil Rights Act to clarify that only parts of a report that identify a victim of a sexual offense are exempt from disclosure, rather than the entire record. In addition, the bill clarified that parties to any civil or criminal action or proceeding may use FOIL to obtain records relating to that action or proceeding, and that a denial under FOIL did not preclude a person to obtain documents by other legal means. Finally, the bill required an agency to provide a detailed and specific rationale for withholding documents.

Governor Hochul signs law after demanding major changes

On Dec. 29, 2021, Hochul technically signed the bill into law, but only after securing an agreement with the legislature that he would make significant changes to the bill. While Hochul allowed some parts of the bill to remain intact, other parts were completely reworked or removed entirely. As an example, one issue Hochul cited was that the bill’s requirement that an agency halt legal proceedings. This would delay the legal process and the processing of the FOIL request. Accordingly, the Legislature has worked over the past several months to further amend FOIL in accordance with the agreement reached with the Governor’s office.

Changes of March 21, 2022

On March 21, 2022, Hochul signed S7734, which commemorates the legislative changes Hochul negotiated with the legislature when it signed A5470 on December 29, 2021. Specifically, this law removed the requirement that a court hearing be held to determine whether documents related to a legal proceeding should be stayed following a FOIL request. Additionally, the law added language to require an agency that is not the designated investigative body in an ongoing investigation to obtain certification from the designated investigative body that records requested by FOIL may be withheld because they would hinder an ongoing investigation. Finally, the new law removed language amending Section 50-b of the Civil Rights Act in its original form before December 29, 2021.

The amendments Hochul promulgated on March 21, 2022 are effective retroactively to December 29, 2021, the date the original amendments became effective.

Unanswered questions and next steps

FOIL imposes strict time limits on the responding agency. One issue that these amendments do not address is what a public body should do if it contacts the “investigating agency” regarding the exemption from law enforcement investigation and does not not receive a timely response.

Another potential problem concerns the FOIL appeal process. Under FOIL, a person who is denied access to records has the right to appeal that decision internally to the agency for which they made the request, before challenging the decision in court. However, the new amendments say nothing about what a public agency must do if the FOIL requester is appealing an initial decision where the records are withheld under the exemption from law enforcement investigation. In these circumstances, and in accordance with the new procedure provided for by the amendments, the agency’s decision would be based on the information provided by the third party in charge of the investigation. This point is worth emphasizing because an agency that denies access to records on the basis of a FOIL exemption must have a “reasonable basis” for doing so and, if it does not, should pay the attorney for the FOIL plaintiff if the case goes to trial. Accordingly, it is unclear whether the agency will automatically be deemed to have had a reasonable basis to deny access to the records if the respondent agency is informed by the investigating agency that the exemption exists, or whether the basis for that decision will include the investigation’s assessment of the agency’s logic. Simply put, without clarification, the amendment arguably creates the untenable position where a public body relies on a determination of whether the third party law enforcement investigation exemption applies, instead of itself, but could be stuck with the consequences if that determination is not deemed reasonable.

Public bodies subject to FOIL are well advised to seek advice from an experienced attorney to ensure compliance with these changes when responding to FOIL requests.