EDITORIAL: FOIL is a tool, but be prepared to follow up

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PHOTOGRAPHER:

So you’re interested in obtaining some records from your state or local government or school district, and you want to go about asking for them.

For that, you need to first familiarize yourself with New York’s Freedom of Information Law, or FOIL.

There are strict rules that governments must follow in deciding when or when not to release records, and there is a process for citizens to follow to request those records.

For starters, the Freedom of Information Law is based on the presumption of access — if the government has a record, it’s assumed to be available as long as there are no legal restrictions against releasing the records.

There are 11 reasons why a board can deny a record, most related to law enforcement, employee contract talks, legal strategy and disclosure that would create an “unwarranted invasion of privacy.” If the record doesn’t fall under one of those exemptions, it must be released.

Governments will try all kinds of word tricks to deny citizens access to records.

A common one is that the information might be embarrassing or make someone look bad. That is not a legitimate excuse for withholding a record.

Governments will also try to mark records as “classified” or “confidential.” That’s an indication that they’re hiding information they don’t want to release. Just because they mark something confidential doesn’t mean that it can be withheld. Make sure the records truly fit one of the exemptions.

They’ll also try to hide a record on the basis of possible litigation. That’s not a term in the Freedom of Information Law. Hold them to the exact language of the law.

So you identify the record you want and you now want to request it.

We suggest first contacting or visiting the records officer, usually with the word “clerk” in their title, and ask first.

Also, check online to see if the record is already posted. Some governments have taken to the practice of posting commonly requested records so save citizens and themselves the time and effort of requesting and responding to a FOIL request.

If a board asks you to file a formal FOIL request, don’t panic. Filing a FOIL is pretty easy.

A template is available on the Committee on Open Government’s website. Just cut and paste that template into an email or letter and fill in the blanks for what information you’re requesting.

Be as specific as possible, both to ensure you get the exact records you want and to either keep the government body from wasting its time tracking down unnecessary records or giving it an excuse to deny you a record.

For instance, include a range of dates to narrow down the request.

You can submit FOIL requests by email. Make sure you’ve got the right person, or your request could be lost or discarded. If you’re unsure, follow up with a phone call to make sure it got to the right person.

Officials have to respond within five business days, telling you whether they’ve decided to grant your request, deny it, or tell you how long your request will take.

Boards can charge for copying and work involved, so make your requests specific and ask for costs in advance. And be prepared to pay something if they require it.

But filing the FOIL request may just be the first step.

If a board denies your request, you will have to consider whether you want to file an appeal, giving a specific reason why the board’s denial was incorrect.

If you still don’t get the record you want and you feel you’re still legally entitled to it, you may have to consider taking the government body to court, which could get time-consuming and expensive.

Government bodies that want to keep secrets often rely on a citizen running out of time, money or patience to deny you access. So be aware that you could be in for a battle.

Even if you go to court and a judge finds in your favor and awards you court costs, it still can be a lengthy and costly process.

Before going to court, go directly to one of your elected officials, or contact the media. They sometimes can help draw attention to your plight and help you pry loose the records.

For more information on state the Freedom of Information Law, the state Open Meetings Law and other helpful information, visit the state Committee on Open Government website at: https://www.dos.ny.gov/coog/.

Good luck. Remember, it’s your right to know. Exercise it.

Categories: Editorial, Opinion

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