FOREWORD

Stating that "a free society can be maintained only when government is open and accessible to its citizens," the Governor of New York signed the State's first Freedom of Information Law in 1974 (1974 N.Y. Laws chs. 578, 579, 580 (Approval Message No. 47)). As originally enacted, the law specified those records of government to which the public would have unimpaired access; required all agencies of the state or local governments to make such records available for public inspection and copying; required agencies to maintain lists of all available records produced after September 1, 1974; and created a Committee on Public Access to Records (now the Committee on Open Government) to advise agencies and municipalities and to promulgate rules and regulations with respect to the administration of the new law.

The 1974 Freedom of Information Law was repealed and reenacted in 1977 (1977 N.Y. Laws ch. 933). Like its predecessor, the new enactment opened with a legislative declaration reading as follows:

The legislature hereby finds that a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government. As state and local government services increase and public problems become more sophisticated and complex and therefore harder to solve, and with the resultant increase in revenues and expenditures, it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible. The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.

The most significant change in the re-enacted Freedom of Information Law was a reversal of the previous law's presumption that records would be unavailable unless falling within specified, limited categories of available documents. As rewritten in 1977 and continuing through the present, New York's Freedom of Information Law states that all records are available to the public unless they fall within one of the law's exemptions.

The statute exempts the following records from disclosure: (1) those exempt from disclosure by state or federal statute; (2) those which if disclosed would constitute an unwarranted invasion of privacy; (3) those which if disclosed would impair contract awards or collective bargaining negotiations; (4) those containing trade secrets; (5) those compiled for law enforcement purposes, under certain specific circumstances; (6) those which if disclosed would endanger life or safety; (7) those containing examination questions or answers; (8) inter-agency or intra-agency materials which are neither statistical nor factual data, instructions to staff affecting the public, final agency policy or determinations, or external audits, including those performed by the comptroller and federal government; (9) those which if disclosed would jeopardize the security of an agency's information technology; (10) computer access codes; and (11) traffic-control signal photographs.

Another significant change in the revised Freedom of Information Law was the requirement that agencies reproduce or copy records for requesters offering to pay a stipulated fee. This contrasts with the earlier law's directive to make records available to an individual for his or her inspection and copying.

The 1977 revision remains largely in place today. There have been a number of legislative amendments adding to or refining its details, but they have not significantly modified the law's basic structure. One of the more important amendments occurred in 1982 with the addition of a provision authorizing an award of attorneys' fees to requesters in certain instances (1982 N.Y. Laws ch. 73). In 1989 a provision was added making it a violation for any person to willfully conceal or destroy any record with the intent to prevent public inspection. (1989 N.Y. Laws ch. 705).

In May of 2005, FOIL was amended to make more specific the time frames available to an agency in which to respond to a request for records. Other amendments are noted, where appropriate, in the body of the text that follows.

Pursuant to an amendment which became law in 2006, all agencies which have “reasonable means available” are required to accept requests for records in email format and to respond in e-mail format when requested to do so. 

Further, legislation effective August 7, 2008 contains amendments reflecting advances in information technology and the costs associated with providing access to information that is maintained electronically.  The 2008 amendments are discussed throughout the outline below.

Open meetings law

In 1976, New York enacted an Open Meetings Law ("OML") (Chapter 511 of the Laws of 1976, effective January 1, 1977). The enactment opened with a legislative declaration of purpose, set forth in Public Officers Law §  100, as follows:

"It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it."

A Committee on Open Government has been established within the New York Department of State, as mandated by the New York Freedom of Information Law. N.Y. Pub. Off. Law §  89(1) (McKinney 1988). The Committee "shall issue advisory opinions from time to time as, in its discretion, may be required to inform public bodies and persons of the interpretations of the provisions of the Open Meetings Law." N.Y. Pub. Off. Law §  109 (McKinney 1988). The Committee's advisory opinions, while not binding, should be credited when they are neither irrational nor unreasonable.

The Committee may be contacted as follows: Committee on Open Government, Robert Freeman, Executive Director, 41 State Street, Albany, New York 12231. Tel. (518) 474-2518, fax (518) 474-1927, e-mail rfreeman@dos.state.ny.us. The text of the statutes, many advisory opinions, FAQs and other information are available at the Committee's web site:http://www.dos.state.ny.us/coog/coogwww.html

Several amendments have been made to the statute since its enactment in 1976. The most significant of these relate to the statute's exemption provision, Public Officers Law §  108. In 1977, an amendment was adopted to specifically provide that the proceedings of the public service commission are not exempt from the Open Meetings Law (1977 N.Y. Laws ch. 532). A 1983 amendment makes the proceedings of zoning boards of appeals subject to the law's provisions (1983 N.Y. Laws ch. 80). A 1985 amendment clarified the initial intent of the exemption as applied to the deliberations of political committees, conferences and caucuses of the State Legislature or legislative body of a county, town or village. Judicial decisions interpreting the law had restricted the effect of the original exemption to apply only where the political committee, conference or caucus met to discuss political business. The amended statute makes all deliberations of political committees, conferences and caucuses of legislative bodies exempt from the provisions of the Open Meetings Law, regardless of the subject matter under discussion (1985 N.Y. Laws ch. 136).

There have been a number of other legislative amendments that add to or refine details of the law. For example, in 1977 the Legislature amended the statute to require public bodies to make all reasonable efforts to ensure that meetings are held in facilities which permit barrier-free physical access for people with physical disabilities (1977 N.Y. Laws ch. 368). In 1979, the statute was amended to provide that an executive session may be held to discuss the proposed acquisition, sale or exchange of securities held by a public body where publicity would substantially affect their value (1979 N.Y. Laws ch. 704). Other amendments are noted, where appropriate, throughout the outline that follows.

This edition is based on earlier editions prepared by Peter Danziger and Jay B. Wright. The original 1988 publication was prepared with the assistance of Barbara G. Billet. Jordan A. LaVine assisted in updating the 1992 version. Seth F. Eisenberg participated in the preparation of the 1997 edition, with special thanks to Marilyn Kelley.  Michael J. Grygiel prepared the Fifth Edition in 2006.