School districts have reported sharp increases in requests for documents filed in accordance with the state’s Freedom of Information Law (FOIL). This may be due to the fact that the law was amended in 2007 to require districts with websites to provide online information about how to file a FOIL request.
Items that can be subject to FOIL are wide-ranging. According to the New York State Committee on Open Government, they can include school board members’ emails that involve public business and even text messages sent on personal phones during municipal board meetings.
While the school board is ultimately responsible for ensuring compliance with FOIL, the task of responding to FOIL requests often falls to the district clerk, a designated records officer or the superintendent (in smaller districts). Below is a primer on the law for board members and personnel who handle FOIL requests.
1. What is FOIL?
In 1974, New York became one of the first states to enact a Freedom of Information Law, which was repealed and replaced with the current version in 1977. Unless an exception applies, the public must be provided with access to a school district’s records which includes, but is 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.”
2. What does FOIL require of school boards?
All school districts are required to have a policy pertaining to the availability of records and procedures, delineating: (1) contact information for the persons from whom records may be obtained, (2) times and places such records are available for inspection and copying, and (3) fees for copies of records, which shall generally not exceed 25 cents per page. Moreover, if the school district maintains a website, it must, at a minimum, post the above information (with the exception of fees) as well as information on how to request records in person, by mail, and if the agency accepts requests for records electronically, by email. This posting shall be linked to the website of the Committee on Open Government.
3. What information must be furnished under FOIL? What’s exempted?
FOIL only requires that existing documents, not information, be provided. In other words, districts do not need to create a document or obtain information that it does not have in order to fulfill a request.
Certain records are specifically exempted from disclosure by state or federal statute. For instance,photographs and records created as part of an investigation of an allegation of child abuse in an educational setting are confidential and shall not be redisclosed except to law enforcement authorities involved in such an investigation, or as expressly authorized by law or pursuant to a court-ordered subpoena.
Furthermore, school districts and other municipal agencies are not required to disclose records (or portions thereof) if such disclosure could endanger the life or safety of any person, would constitute an unwarranted invasion of privacy, impair present or imminent contract awards or collective bargaining negotiations, or jeopardize their ability to guarantee the security of its information technology assets.
Also, exempt are records that are inter-agency or intra-agency materials, as long as they are not: (1) statistical or factual tabulations or data, (2) instructions to staff that affect the public, (3) final agency policy or determinations, (4) external audits, including but not limited to audits performed by the state comptroller and the federal government, or (5) examination questions or answers which are requested prior to the final administration of such questions. The inter-agency and intra-agency materials exceptions are complicated and may require consultation with district counsel before the district makes a determination on whether either exception applies.
4. Can the person making a FOIL request be charged for the public records?
It depends. If the request is for paper copies, the district may charge 25 cents per page, unless its policy or practice mandates a lesser amount. Moreover, if the paper copies requested are larger than 9” x 14”, the district may charge the actual cost of making the copies.
However, the Committee on Open Government has advised that records should be provided electronically in most instances, and the actual cost should be minimal as it should reflect only the cost of the storage medium in which the information is made available (e.g., a computer disc). Nevertheless, if the request is for a large volume of electronic records, the district can charge the actual cost of reproducing the records, and when it takes more than two hours to prepare, extract or generate electronic data, the district can charge for the employee’s time.
Records provided in a computer format shall not be encrypted. In some cases, an individual may request a voluminous amount of records. Even though the district cannot deny requests on the basis of volume, it may employ an outside service to fulfill such request, and recover those costs from the person making the FOIL request.
5. Can the records be inspected instead of the person receiving copies and paying a fee?
Yes. Any person has the right to inspect
accessible records at no charge.
6. How fast must the district respond?
The district must respond within five business days of receiving a FOIL request by providing the material requested, denying the request in writing or notifying the requester, in writing, of the approximate date that the request will be either fulfilled or denied.
If the district decides to grant the request in whole or in part but has not done so within 20 days of acknowledging receipt of the FOIL request, the district must state, in writing, the reason for the delay and give a specific date, which is reasonable under the circumstances, as to when the request will be granted in whole or in part.
Because an email may be sent at any time, a FOIL request received via email is determined to have been received on the first business day on which it was received during normal business hours. For example, if sent at noon on Sunday, an email would be deemed as received on Monday at 9 a.m.
7. What happens if the district fails to comply with the time limitations?
It could constitute a denial of a request that may be appealed in accordance with Public Officers Law Section 89(4)(a), and result in certain penalties being imposed upon the school district. Specifically, a court may require the school district to pay reasonable attorney’s fees and other litigation costs reasonably incurred by a prevailing party when the district did not have a reasonable basis for denying access, or failed to respond to a request or appeal within the statutory time. Thus, in The Exoneration Initiative v. New York City Police Dep’t. (2013), the Supreme Court of New York County ordered in part that as the prevailing party, petitioner be awarded reasonable attorneys’ fees, amounting to approximately $49,000, because the agency had disregarded the statutory deadlines for responding to a FOIL request, and thus constructively denied the request.
Moreover, willful concealment or destruction of public records with the intent to prevent public inspection constitute a “violation” and are punishable by a fine and/or a jail term of up to 15 days.
The New York State Association of School Attorneys represents school boards and school districts. This article was written by Randy Glasser of Guercio & Guercio, LLP.