A Primer on Public Officers Law 87
Public Officers Law 87 ("POL 87"), codified as Article 6, sections 84-90 of the New York Public Officers Law, governs the public’s right to access existing government records. Together with POL 89, which addresses requests for existing government records, POL 87 is one of the primary statutes confirming the importance of open government. In recognition of the importance of the public’s right to know, the New York State Legislature recognized in POL 87 that "The people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know. The people do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give public servants the right to hold the public in ignorance." See POL 87(1).
POL 87 defines "public agency" to include "any state or municipal entity . . . [and] every state or municipal department, board, bureau, division, office, commission, public authority, public corporation, public benefit corporation, including a public authority created pursuant to title 5 of article 31 of the public authorities law, or other government entity performing a governmental function for the state or any other governmental entity" (see POL 86 (3)) . It further defines "record" as "any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form whatsoever, including but not limited to, handwriting, typing, printing, photostating, photocopying, photographing, and recorded information, including, but not limited to, communications, audio recordings, email, video recordings and computer generated data or computer database." Id. at (4).
Among the key requirements of POL 87: 1) When a request is made for records, the agency has five (5) days to respond with either a determination concerning how it intends to satisfy the request or a written statement explaining why the request cannot be satisfied within the five (5) day period and when it can be expected to be satisfied (see POL 89 (3)); and 2) Agencies are not permitted to charge a fee related to locating the requested record, but are permitted to charge for the reproduction of paper copies as follows: $.25 per photocopy not exceeding 9 by 14 inches or the actual cost of reproducing any other document. See POL 87 (1).
Provisions of Public Officers Law 87
Pursuant to Law 87 (Formerly §89 of the Public Officers Law) a person has the right to inspect or copy any record from any "agency" or "governmental entity" or "public body" (i.e., New York State and municipal government entities, including public benefit corporations, and public authorities or any other governmental, quasi-governmental or public entities "any state or municipal corporation, agency, or any governmental or quasi- governmental entity performing a governmental function for or on behalf of the state or any political subdivision thereof" according to §86 of the Statute) as long as the record is not exempted by some statutory method. Agencies may not deny access to public records based upon the subject matter of the public record, to prevent pain to the person who is the subject of the record. However, an agency may deny a request for access to records if the record falls within one of the exceptions set forth in the law. The law states that there are eight exemptions to be utilized by an agency to justify their denial of access to a record: 1. information not relating to the affairs of an agency; 2. records "specifically exempted from disclosure by state or federal statute"; 3. records pertaining to "current or anticipated criminal investigations or prosecutions"; 4. "matters that are the subject of current administrative or judicial hearings or proceeded in the New York State legislature"; 5. "trade secrets or any commercial or financial information obtained from a person or firm which if disclosed would cause substantial injury to the competitive position of the person or firm from whom the information was obtained." 6. "individuals’ privacy rights" (noting that "the right of privacy in relation to personal matters is not absolute" and that "[i]n balancing the privacy interests involved against the interest of the public in disclosure, it should be borne in mind that in open and free government the best control results from the people’s right to know"); 7. "the maintenance and preservation of the legal intergrity of law [enforcement] investigations;" 8. matters "pertaining to collective negotiations" between an agency and "employee organizations recognized or established pursuant to law, provided that such matters are not final agency policy or determinations." §86.
Filing a FOIL Request
The Public Officers Law 87 process for requesting government records is relatively straightforward. However, there are some potential pitfalls that may affect the outcome of a request. A FOIL request must be in writing and should identify the records being requested. The requesting party can either submit the written request in person to the head of the agency, or can send the written request to the head of the agency by mail. Some agencies also have an online portal for submitting FOIL, which should be investigated on the given agency’s website. Each agency is required to maintain a website containing contact information for its Records Access Officers. Usually, there is one officer for all records, although a request that an agency partially or totally delegate its FOIL responsibilities to other officers has been upheld. The Records Access Officer is the person with whom the FOIL request is filed. This officer should act on behalf of a public agency to facilitate the public’s right of access to public records within the time frames that are mandated by law. The officer is mandated to maintain a log of records requests and responses, and to respond in writing to all requests that had to be denied in whole or in part, including the reason for the denial. The agency must make records available for "public inspection and copying," with two exceptions: if the material requested is from a non-governmental entity that would affect their privacy or proprietary rights, it will not be disclosed; also, if the nature of the request is brought into the agency’s attention after the agency has received a formal request, that agency must act as a "traffic cop" and redirect it to the appropriate agency with the relevant records. Usually, an agency will respond promptly to confirm receipt of the FOIL request. They also must respond to the request within five business days of the receipt of the written request: they either deliver the record, or issue a written denial (in whole or in part) stating the basis of such denial. The agency can also request an extension for the processing and/or review of such record(s), not to exceed an additional 20 days after the expiration of the 5-day time frame. If the agency fails to respond within the time limits set by the regulations, the FOIL request will be deemed granted as a matter of law. Agencies are clearly authorized to charge fees for the search through and copying of government records, although it is suggested that "at a minimum," fees should be set at the actual cost of making copies of records. As an example, currently, the Judiciary charges a fee of $.65 per page to provide copies of the records. Additionally, the requesting party must pre-pay any estimated fees of more than $25. In contradistinction, there is no fee for FOIL or Freedom of Information Law requests that seek solely records on microfilm, microfiche, optical image disks as well as all electronic records such as e-mails and documents, spreadsheets, databases, and all other electronically stored information. FOIL specifically cautions that every person while performing duties under Public Officers Law 87 should be independent of political faith and maintain professional conduct. These individuals therefore face a conflict of interest when a FOIL request is presented. For example, if party A wants to know if party B had a spousal relationship with an agency employee, he will probably be communicating with someone who has known that employee for many years and therefore has a personal stakes when dealing with his or her FOIL request.
Law 87 – Exemptions and Denials
There are exemptions to the general rules about access to public agencies’ records, and one of the problems that can arise is denial of access under Public Officers Law 87. Sometimes for the public interest to be served, such as in secret investigations, it is desirable for there to be no public access at all, and sometimes the perceived usefulness of the records simply does not justify their production, or no one has the information requested.
The first exemption to the general rule that access to government records must be given upon demand is contained in the Public Officers Law itself: A right of access does not extend to records that contain "information of a personal nature in which the subject has a privacy interest which would be violated" by disclosure, unless that violation "would constitute an unwarranted invasion of personal privacy if disclosed." There are also numerous other specific exemptions, such as where the records "are compiled for law enforcement purposes and if disclosure would . . . interfere with enforcement proceedings, deprive a person of a right to a fair trial or an impartial adjudication, unavoidably reveal the identity of a confidential source or would endanger the life or safety of any person." There are also exemptions where records are meant "to be used in a civil action or proceeding or to be made available to the general public pursuant to a statute or court rule," and under similar language in the Federal Freedom of Information Act ("FOIA"). There is also a disclosure threshold requirement of civil interest if disclosure of otherwise exempted documents would contribute to assisting in the public interest such as where the records "are relevant to the performance of official duties of an agency … as well as likely to contribute significantly to public understanding of the operations or activities of the government" and where the requester’s "specially benefit" from disclosure of the documents is "the understanding of the public at large."
If the government claims a right of exemption, it has the burden of setting out both the statutory basis for the exemption and the "particular ground" for the denial of access to the records. The government’s response to a request must "contain a sufficient factual basis for the denial, must specifically address the requester’s stated purpose in making the request, and the reason or reasons for denial are to set forth that public policy basis for the decision . . .."
One of the common requests for records is for the inspection of "information relating to private godlegs . . …" However, the courts have addressed this issue in the context of public police records as well, and they have established that access to police records is at the discretion of the police department. Moreover, in the case of The New York Times Co. v. The City of New York, 239 App. Div. 2d 1 (1st Dep’t 1998), the First Department observed that in rejecting a claim of no access, "the Commission on Human Rights also determined that ‘[h]aving already made . . . [petitioner] aware of its pre-existing policy and then maintained that policy without change for almost a quarter century, [human rights commission] cannot now credibly support a claim that . . . [petitioner] was not sufficiently informed of its contents to have relied upon them.’" Out of the whole group of requests that the article references, only a small number were actually denied. Most of the redactions were made with the identification of witnesses, allegations, and criminal data. Still, a significant number of redactions throughout the record were made marking out "The Bronx" when it was discussed by witnesses.
Law 87 Appeals Process
If your request for records under Public Officers Law 87 is not granted, the denial is not necessarily the end of the line. Under the law, any person denied access to a record may petition the head of the government agency in writing within 30 days after denial. The agency head or his or her designee then has seven business days after receiving the petition to reach a determination and notify the petitioner in writing. If the request is again denied , the head of the agency is required to explain in writing the reasons for the denial of the appeal.
If the denial is by another officer or employee, you may appeal the initial denial to the agency head. Determinations by the agency head are subject to judicial review pursuant to Article 78 of the Civil Practice Law and Rules. Therefore, any final agency determinations can be overturned in a New York State Supreme Court, which is the State’s trial-level court.
Increased Transparency Under Public Officers Law 87
In a state where information is power, Public Officers Law 87 has been at the forefront of ensuring that the power of information is accessible to the public. In addition to providing individuals with the ability to obtain information regarding issues affecting their daily lives, Public Officers Law 87 serves as a strong foundation for maintaining the transparency in which State and local governments are held accountable. A study conducted by the Center for Democracy & Technology titled Dramatic Shift: Right to Know in the Digital Age found that nearly 90% of Americans say that "public access to government data promotes democracy" while 84% assert that "public access makes government more honest and trustworthy." The study concluded that "[p]ublic access to government information provides citizens with the tools to hold government accountable and its officials responsible." In New York, the only thing standing between the disclosure of government records and the public is Public Officers Law 87.
Case Law and Recent Developments
There have been numerous determinations from the Committee on Open Government since the original publication of this post. On February 8, 2011, the COG issued a determination in response to an appeal of the withholding of records related to the New York City Police Department’s Mobile Communications Center. The denial was based on the records’ disclosure serving to reveal non-public police tactics, techniques, and procedures, and therefore, did not constitute "bare legal authority" within the meaning of Public Officers Law 87(2)(a).
Another recent development of note stemmed from the Second Circuit’s reversal of a Second Department appellate order that the City describe the methodology used in calculating the required FOIL fee for the copying of documents. Kleindienst v. Telair, 02-630-CV(O) (decided February 22, 2002). In the Second Circuit case, Petitioner’s attorney had appealed the town’s fee for producing copies in an Nathan File. He was requesting a copy of Nathan Leavitt’s birth certificate. The town fee quoted for private copying was $10.50 per sheet times 25 pages. The court held that the cost to reproduce the files kept on digitized microfiche was $.25 which was an appropriately low amount that the citizen could afford.
The recent determination from the Committee on Open Government , Mr. Bennett’s Appeal (on file with the author), in response to an appeal related to a FOIL request for records pertaining to the mass arrests during the 2004 National Republican Convention has also shed some light on this subject. This appeal addressed the application of General Municipal Law 809 where access to police reports and other records were sought. The Committee determined that the reports were clearly a record prepared in the course of law enforcement activity. General Municipal Law 809 as amended by Chapter 554 of the Laws of 1982 contains no exception applicable to the public’s right of access to police reports in general. The Committee further stated that the Respondent may be directed to conduct a safety and law enforcement operational risk analysis in order to determine what risk to safety and law enforcement operations would occur if the requested records are disclosed. However, the Respondent must come forward and demonstrate that public disclosure of the information sought in this appeal would create a significant risk to public safety or law enforcement operations.
In short, these recent developments show how courts and agencies are interpreting the Public Officers Law 87 to give teeth to its overarching purpose by making explicit when and why an exception applies.