Freedom of Information Law

1. Freedom of Information Law Training Module 6

2. Freedom of Information Law What is FOIL? • New York Freedom of Information Law • Establishes procedure to ensure citizen’s right of access to government records • SWCD’s are political sub-divisions of state government and must abide by FOIL

3. Freedom of Information Law Section 1 FOIL Title is Misleading Does NOT deal with access to information but access to records It is NOT a vehicle to give the public the right to cross-exam public officials Deals with existing records – not required to create a new record Section 2 Section 3 Section 4 Section 5

4. Freedom of Information Law FOIL • What is a record? • RECORD is any information in any physical form whatsoever, that is kept, held, filed, produced or reproduced by, with or for a government agency • – as defined by NYS law in 1978

5. Freedom of Information Law Proactive Disclosure • FOIL based on presumption of access • Burden of proof lies on District to show why document shouldn’t be disclosed • Proactive Disclosure • Making records that are clearly public, frequently requested, and important available on websites (minutes, maps, etc.)

6. Freedom of Information Law Section 2 FOIL Policy Section 1 Required to have a written FOIL Policy District can follow their county policy If different from county’s, it should be vetted through the County Attorney District should designate a FOIL Officer who handles all requests Section 3 Section 4 Section 5

7. Freedom of Information Law Section 3 Exceptions Section 1 • DO NOT RELEASE Records that have potential to harm: • Government in terms of its ability to do its job on behalf of the public • Private Company in relation to its competition • Someone in terms of invasion of personal privacy (SS number, home address, telephone number, etc.) Section 2 Section 4 Section 5

8. Freedom of Information Law Exceptions – AEM • Agricultural Environmental Management: • Information gathered under AEM is deemed confidential by NY AGM Law and EXEMPT from FOIL • Some information gathered could be incriminating or documenting illegal activity (e.g. documenting lack of records for pesticide application) • Information re-packaged to develop a report, is no longer exempt

9. Freedom of Information Law Exceptions – NRCS Programs • USDA Section 1619 Confidentiality Clause: • Section 1619 – 2008 Farm Bill • Prohibits disclosure of certain information by the USDA and its cooperators: • information provided by an agricultural producer/owner of Ag land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in the programs of the NRCS • Geospatial information otherwise maintained by the USDA about agricultural land or operations

10. Freedom of Information Law Exceptions – Inter/Intra Agency Materials • Materials between or among government offices do NOT have to be disclosed. • Court of Appeals ruled four instances where disclosure is required: • Statistical or factual tabulations or data – includes estimates & projections – statement of facts • Instructions to staff that affect the public • Final District policy or determinations • External audits

11. Freedom of Information Law Section 4 Requests Section 1 • What is a Request • Verbal, written or electronic acceptable • Must be reasonable and describe records being requested • Phone Book Example • Reasonable – records of people last name Smith • Unreasonable – records of people first name Jane Section 2 Section 3 Section 5

12. Freedom of Information Law Responding to Requests Response required within 5 business days: Grant access Deny access in writing with explanation of denial and inform applicant of right to appeal Acknowledge receipt of request and provide approximate date (within 20 business days) request will be met Acknowledge receipt of request, provide explanation for delay beyond 20 days, and give ‘date certain’ for delivery

13. Freedom of Information Law Sample Letter – Approval Dear: Your request for information under the Freedom of Information Law (FOIL) was received in our office on DATE. I am pleased to enclose a copy of the information requested. Even though the Freedom of Information Law permits us to charge you for copying this information, we are sending it free of charge as a public service. If you have any questions about this information, please contact FOIL Coordinator, NAME at PHONE #. Thank you. Sincerely, Name, Title

14. Freedom of Information Law Sample Letter – Extending Time Dear: Your request for information under the Freedom of Information Law (FOIL) was received in our office on DATE. I am not able to respond to your request within the time limit set forth in the law because of REASON (e.g. the broad nature and extensive scope of the request…other reasons could also exist). I am therefore extending the response timeframe and will comply with your request on or before DATE (may extend timeframe for 20 business days). If you have any questions about this information, please contact me at PHONE #. Sincerely, Name, Title

15. Freedom of Information Law Sample Letter – Denial Dear: Your request for information under the Freedom of Information Law (FOIL) was received on DATE. Your request is denied because the information you seek does not exist in our office. After a diligent search, I have not been able to locate the records you seek with the information given. If you have any additional information regarding the description, location, content, or date of the record you seek, please call or write so I can continue my search on your behalf. Pursuant to provisions of FOIL, you have a right to appeal this decision in writing to (name individual and address). Your letter must identify a reason for your appeal. Further, you may have a right to receive attorney’s fees and damages as provided in the FOIL if, after judicial review, the court determines that we have not complied with the law and orders a disclosure of the record you seek. If you have any questions please contact me at PHONE #. Sincerely, Name, Title

16. Freedom of Information Law Requests • Charging Fees • Fees may be charged for copying public records • $0.25 per page for copies up to 9”x14” • Or actual cost of reproduction (cost of CD etc.) • Cannot charge for the inspection of records or personnel time compiling the request unless requires over 2hrs of time • Email should be preferred response method

17. Freedom of Information Law Section 5 Appeals to Denial Section 1 Right to Appeal Applicant has 30 days to file an appeal Appeals are filed with governing body of FOIL Officer SWCD Board of Directors Section 2 Section 3 Section 4

18. Freedom of Information Law Appeals • Responding to Appeals • District must respond to an appeal within 10 business days by; • Making the records available • Or fully explaining in writing reasons for further denial • No response considered denial of access • Determination shall also be submitted to Committee on Open Government (COOG)

19. Freedom of Information Law Appeals • Enforcement and Attorney’s Fees • If appeal denied, applicant can take to court • Court can award attorney’s fees to be paid by SWCD if applicant “substantially prevails” • Court has to find that SWCD either: • Had no reasonable basis for withholding record • Or failed to comply with time limits for responding

20. Freedom of Information Law FOIL Video

21. Freedom of Information Law Additional Resources