New York

The definition of an agency record covered by the Freedom of Information Law is sufficiently broad to include electronic messages maintained by government agencies. FOIL § 86(4). Whether a particular electronic communication is exempt from disclosure under FOIL will be determined by its content, rather than by the nature of the medium or format in which it is maintained by the agency. Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 849 N.Y.S.2d 489 (2007) (“FOIL does not differentiate between records stored in paper form or those stored in electronic format”); Babigian v. Evans, 104 Misc.2d 140, 427 N.Y.S.2d 688 (Sup. Ct., N.Y. Co. 1980) (“information is increasingly being stored in computers and access to such data should not be restricted merely because it is not in printed form”), aff’d, 97 A.D.2d 992 (1st Dep’t 1983).

Two FOIL amendments made in 2008 — which seemingly apply to all types of electronic communications — require an agency to take public access considerations into account when it contracts with outside vendors and designs electronic information systems. New language added to FOIL in the form of § 87(5)(b) prohibits an agency from entering into or renewing a contact for the creation or maintenance of records where it would impair the public’s right of inspection or copying.

Section 89(8) of FOIL, which provides that any person who, with intent to prevent public inspection of an agency record, “willfully conceals or destroys any such record shall be guilty of a violation.” Although distinct from a specific retention policy governing electronic information files, this provision would seem to apply with full force and effect to any situation where agency personnel have intentionally failed to preserve or have purged electronic communications to avoid disclosure under FOIL.