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Aug 25, 2023
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FOIL Toolkit

A guide on how to submit a Freedom of Information Law (FOIL) request for New York state and local government records.

New York State’s FOIL entitles the public to access state and local government records. Any member of the public can request a government agency’s records.

This toolkit is for anyone who wishes to submit a FOIL request for New York state and local government records.

New York State’s Freedom of Information Law (generally referred to as “FOIL”) entitles the public to access state and local government records. Any member of the public can request a government agency’s records. You do not need a lawyer to file a FOIL request or to receive records from a government agency.

This FOIL toolkit is for anyone who wishes to submit a FOIL request for New York state and local government records.

In this guide, you will learn tips to navigate the FOIL process, including:

  • How to draft, file, and follow up with your FOIL request;
  • How to draft an administrative appeal if the government agency ignores or denies your FOIL request;
  • What to consider before filing a FOIL lawsuit; and
  • Examples of FOIL requests, agency correspondence, and administrative appeal letters.
WHAT INFORMATION CAN YOU FOIL?

The short answer is that you can FOIL anything—all government records are presumptively available to the public, unless one of FOIL’s “exemptions” (see below) applies. “Records” is defined broadly to include documents in hard copy, electronic files, data, audio, and video. While the agency is not required to create any new records in response to a FOIL request, it is required to locate, review, and produce existing records in its possession. Some examples of records that you may wish to FOIL include:

  • Law enforcement disciplinary files (police misconduct complaints, disciplinary findings, etc.) in the possession of a police department, corrections agency, or fire department;
  • State or municipal agency policy documents;
  • Contracts or other records of expenditures involving a government agency;
  • The underlying documents an agency relied on or consulted when it released a particular statement, policy, or report.

Exemptions

Under New York law, there are certain exemptions for government information that is not subject to FOIL. So sometimes your request, or a portion of it, may fall under these FOIL exemptions, which means the agency can deny your request in full or in part. Here are some common exemptions that may be relevant to your FOIL request:

  1. Records that are exempted from disclosure by another state or federal law (e.g., many healthcare records are rendered confidential by specific state and federal statutes);
  2. Records that, if disclosed, would be an unwarranted invasion of personal privacy. This can be tricky, since it is judged on a case-by-case basis balancing the public’s interest against any possible privacy invasion. But know that you are generally not entitled to things like credit histories, medical records, or confidential information not relevant to an agency’s work. At the same time, note that the privacy exemption does not apply if:
    1. Identifying details are deleted;
    2. The person implicated in the record gives permission for disclosure; or
    3. You are seeking access to records pertaining to yourself.
  3. Certain law enforcement records that would interfere with an active investigation, disclose a confidential source, or reveal non-routine investigative techniques.
  4. Certain inter-agency or intra-agency materials (e.g., internal agency memos or communications), although this exemption often involves redaction because the agency still needs to turn over portions of such records that show factual information, data, instructions to staff that affect the public, and final policy decisions.

A full list of exemptions can be found in Public Officers Law Section 87(2).

The following are not valid reasons to deny a FOIL request:

  1. If the request is voluminous or the process of locating/reviewing/providing the records is burdensome; and/or
  2. If disclosure would cause embarrassment to an agency employee.
WHAT TO DO BEFORE YOU FILE

Determine what information you’re looking for.

This may seem like an obvious step, but it’s important to be clear about what you’re looking for so the agency cannot deny or delay your request. Think about whether you are seeking specific records that you know to exist or believe might exist, or if you’re seeking anything relevant to a particular topic, communications between particular individuals or agencies, or specific to a particular time period.

See if the information that you intend to request has already been released to the public in full or in part. This could help give you information to make your request more specific (e.g., “I request County Form G5 for the following years”), or it could give you the answer you’re looking for without having to file a FOIL request. We provide a list of some databases that maintain a lot of public records people frequently ask about in the Appendix for reference. An online search can also reveal if other organizations or stakeholders have requested the information you are seeking and could give it to you.

Find out who to submit the request to and how.

Check the agency’s website to confirm the requirements for filing a FOIL request. The most common methods of submitting a FOIL request are via email, an online portal, or regular mail.  Make sure you locate the email address to send the request to, if applicable, and the name and address of the Records Access Officer. If you can’t find this information on a website, call the government agency and ask.

HOW TO WRITE AND SUBMIT A FOIL REQUEST

Here’s the basic information you need to include in a FOIL request. We’ve included sample FOIL requests in the appendix of this toolkit for reference.

Provide basic information about your request.
  1. Date
  2. Name and Address of the Records Access Officer for the agency you’re requesting information from. If no one is named, address it to “Records Access Officer”.
  3. Subject Line: “Re: FOIL Request – [Type of Record] from [Name of Agency]”.
  4. In the first sentence of the body of your request, specify: who you are, that you request this information pursuant to the New York State Freedom of Information Law; and a brief description of the records you are seeking.
Next, provide more specifics about the records you are seeking.

This is the most important part of the request. Think about the records you want to obtain and reasonably describe them with sufficient specificity so that the agency understands what you are seeking. The more specific you can be, the better.While it’s ok to use broad language when you’re not sure of all the specifics (e.g., “I request a copy of the Department’s use-of-force policy, along with any other policies or other records that are cross-referenced in the text of that policy”), try not to make requests that are too vague. If you don’t “reasonably describe” your request in a way that would allow them to know what you’re asking for, the agency could deny it.We recommend that you number each of your individual requests so that you can reference a particular one whether in communications with the agency or a court.Include any known information, such as: the type of report, identifying number of report, date or title of document, key words contained in the records, precinct/specific agency department producing the rerecord, location of occurrence described in the record, etc. The description can be formatted as a paragraph or be in outline form.

Specify how you would like to receive the records:

“Consistent with section 85(5)(a) of FOIL, please provide these records via email.” In some instances, the agency may not be able to email you the records. In that case, include the following: “If all of the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and let me know the cost for reproducing the remainder of the records requested.”

Ask the agency to contact you for clarification if your request is too broad or unclear: 

“If my request is too broad or does not reasonably describe the relevant records, please let me know via email and I will clarify my request.”

State the 5-day time frame that FOIL requires the agency to acknowledge receipt of the FOIL and to produce the records.
Request the agency include the following information in response: 

“If any records are unavailable within the five business days of receipt of the request, and responsive documents exist, please provide a description of such records and a timeline of when access to the records will be provided. If you determine that certain parts of this request may be more easily produced than others, I am amendable to discussing a production schedule for records that will take longer to produce.”

Request that the agency explain any denial in writing.

Here’s some useful language you might use: “If you deny any or all of this request, please inform me of the reasons for the denial in writing and provide the appeal procedures as well as the name and address of the person or body to whom an appeal should be directed. If you determine that any portion of the requested records are exempt from disclosure pursuant to FOIL, please delete only the material claimed as exempt, inform me of the basis for the exemption claim, and furnish copies of those portions of the records that you determine are not exempt.”

At the end of the letter, include a contact person’s email and phone number.
If sent online or via email, we recommend formatting your FOIL request letter as PDF document and saving a copy for your records. 

When submitting a FOIL request via email or an online portal, ideally you’ll want to type up your FOIL request in a separate document that you’ll attach to the email or upload to your portal submission. For emails, you can type the body of the email: “Please see attached FOIL request for [summarize in a few words].” For portal submissions, we generally recommend uploading the request as an attachment and typing “Please see the attached request” in the provided space on the form. This is to prevent the form, which may have limited word space, from automatically cutting off any words in your request. If you can’t do that, however, it’s ok to just fit your request into their standard format.

STRATEGIES TO GET AN AGENCY TO RESPOND

Once you submit a FOIL request, you can use non-litigation advocacy to try to access the records you seek before filing an administrative appeal or lawsuit.

Self-Advocacy

We have found that following up with government agencies once they have acknowledged receipt of your request and working together to find a path forward to get responsive records can go a long way.

Reach Out to Your Elected Officials

Elected officials (including state legislators or local officials like city council members) can help advocate for an agency to produce responsive records. Such officials can write letters, make calls, or garner support from other like-minded elected officials to increase pressure on the agency to respond. You should be prepared to provide dates, copies of your correspondence, and other relevant information to the elected official you wish to help you advocate for access to FOIL records.

Reach Out to the Media

You may wish to seek media coverage of your FOIL attempt by reaching out to media outlets or holding a press conference near the agency. While it may be difficult to get the media to take interest in your advocacy or request, if successful, media attention can also help build pressure on the agency and get it to respond to your request adequately or more favorably.

Seek Out Support from Community Groups Working on Related Issues

Consider reaching out to local groups or other advocacy groups who may take interest in your request or issue. They may have access to additional resources, experience in launching public pressure campaigns, experience filing FOILs or volunteer attorneys who can assist with a lawsuit. Remember to consider groups that might not be your natural ally. There are groups who may have a different mission but are also committed government transparency.

ADMINISTRATIVE APPEALS

In addition to using the above means to advocate for the release of your requested records, in order to preserve your right to the records, it is important to get an administrative appeal on file within 30 days of an agency’s initial denial (or the completion of what they are willing to give you). You may choose to file an administrative appeal if you disagree with an agency’s decision to:

  • Deny your request (in part or in full);
  • Redact portions of responsive records;
  • Not produce all of the records responsive to your request or not conduct a proper search; or
  • Fail to respond to your request in a timely manner.

If you want to fight any of the above problems, or if you are considering pursuing legal action in court around your FOIL request, you are required to file an administrative appeal. We have included sample letters of some of the most common types of administrative appeals in the Appendix.  Administrative appeals are sent to a Records Access Appeal Officer who is at the same agency, but different than your original contact. Please know that administrative appeals are often denied, but they are important because they preserve your right to keep fighting for the records.

To appeal, you must submit a written administrative appeal letter. You should also double check the agency’s website or instructions, which may be contained in a letter from an agency responding to your requests, for any agency-specific requirements for filing an administrative appeal.

Your administrative appeal should include the following:

  1. Date
  2. Name and Address of the Records Access Appeals Officer; if no one is named you can address it to “Records Access Appeals Officer”. Make sure that you send it to the right person and/or office, as the person reviewing your administrative appeal will most likely differ from original recipient of your FOIL request.
  3. Subject line: “Re: FOIL Request – #XXXX-XXX-XXXXX”. Note that the agency should have assigned a unique number to your specific request, and you should identify it in all correspondence you have with the agency. If the agency failed to acknowledge your request and/or assign your request a specific number, you can refer to the date your request was submitted or delivered and a very brief summary of what you requested. For example, “Re: FOIL Request Dated XX-XX-XXXX for Records Related to [Subject/Summary]”.
  4. A short paragraph explaining that you are appealing the agency decision and what that decision is. For example: “I write to appeal under the Freedom of Information law (Article 6 of the Public Officers’ Law) the [Department’s] denial of my request dated [Date] for documents related to [brief summary of your request]. The [Department] [brief summary of the agency action that you are appealing, e.g., “denied my request in full”].You should also be sure to attach all the relevant correspondence sent and received between you and the agency. This includes your initial request, the agency’s response, if any, and any relevant written records, like emails, of any correspondence you had with the agency.  Also be sure to label and refer to each document you’re including in your appeals letter. As you will see in some of our sample appeals letters in the appendix, you can label your initial request as “Exhibit A”, the acknowledgment email or letter from the agency as “Exhibit B”, and so forth.
  5. In the next section of your appeals letter, which can be as short as one paragraph, explain why the agency’s action or decision is wrong and provide support for your position. The samples in the appendix, which cover some of the most common types of denials, provide arguments and cases that explain why the agency is wrong. As explained in more detail below, you can also refer to resources from the New York State Committee on Open Government for additional support.
  6. At the end of the letter, you can reiterate that you are appealing the agency’s response to your request and provide your contact information. You can also add a line reiterating your request for responsive documents. For example: “I therefore appeal the [Agency’s] response and request that the department produce any responsive documents promptly. If you have any questions about this, you may contact me at [contact information].”

You may want to refer to the New York State Committee on Open Government’s website for more information on FOIL when you draft your administrative appeal.

After you submit your administrative appeal, the appeals officer must then respond within 10 business days and either fully explain in writing the reasons for further denial or provide access to the record.

 

FOIL LAWSUITS

If your administrative appeal is denied, you may bring a FOIL lawsuit, also known as an “Article 78 petition.”  A state court judge will then rule whether you are entitled to access any or all the records you requested and direct the agency to produce the responsive records. You generally have 120 days from the date you receive the denial of the administrative appeal to file your petition in court.

While this toolkit is not intended to guide you through litigating a FOIL lawsuit, we hope to provide you with enough information to help you decide whether FOIL litigation is the right path for you.

Keep in mind that this process can be time- and resource-intensive, meaning you can experience additional long delays or may have to pay out-of-pocket expenses when filing and moving forward with a lawsuit. While it is possible to pursue a lawsuit on your own (referred to as a pro se lawsuit), you may have more success in a lawsuit with the help of an attorney. As part of the lawsuit, you or your attorney will have to present written legal arguments as to why an agency should produce responsive records and why the agency’s decision was wrong. You may also have to present those arguments orally in court. You may also be expected to attend various court proceedings or engage in settlement discussions with the agency to which you submitted your request.

APPENDIX
Police Personnel Databases

New York State

  1. New York State Police Disciplinary Records: USA Today Network news organizations in New York State have created this searchable database of police disciplinary records for police departments around the state. You can search discipline records by county: https://data.democratandchronicle.com/new-york-police-disciplinary-records/

New York City

  1. NYPD Member of Service Histories: This database allows users to view the records of NYPD misconduct allegations. Click a row to see the officer’s allegation history, including the Civilian Complaint Review Board’s disposition, the NYPD’s disposition, and the penalty ultimately imposed: https://www.nyc.gov/site/ccrb/policy/MOS-records.page
  2. NYCLU’s NYPD Police Misconduct Database: The NYPD Misconduct Complaint Database is a repository of complaints made by the public on record at the Civilian Complaint Review Board (CCRB). These complaints span two distinct periods: the time since the CCRB started operating as an independent city agency outside the NYPD in 1994 and the prior period when the CCRB operated within the NYPD. The database includes 323,911 unique complaint records involving 81,550 active or former NYPD officers. The database does not include pending complaints for which the CCRB has not completed an investigation as of July 2020: https://www.nyclu.org/en/campaigns/nypd-misconduct-database
  3. Legal Aid Society’s Law Enforcement Lookup: Law Enforcement Lookup (LELU) provides one-stop access to law enforcement misconduct data in New York City. LELU is an extension of the Legal Aid Society’s Cop Accountability Project (CAP), which empowers organizations and communities across New York City to hold police officers accountable for civil rights violations: https://legalaidnyc.org/law-enforcement-look-up/
  4. Brooklyn District Attorney’s Office Documents on Police Misconduct: These documents were provided in response to a WNYC/Gothamist FOIL request. https://www.documentcloud.org/app?q=%2Buser%3Ageorge-joseph-102442%20Gothamist developed a searchable database of the records: https://gothamist.com/news/brooklyn-da-releases-massive-trove-internal-d…

Outside New York City

  1. City of Rochester Police Department Discipline Database: https://www.cityofrochester.gov/policediscipline/
  2. Fairport Police Department Personnel Records: https://www.village.fairport.ny.us/departments/police_department/index.php
  3. Utica Police Department: https://www.cityofutica.com/departments/police-department/department-per…
  4. City of Beacon: https://ecode360.com/documents/pub/BE0803/Misc._Documents?
Sample Administrative Appeal Letters

View the PDF attachment for sample administrative appeal letters addressing some of the most common types of denials you might face. Specifically, they include appeals challenging an agency’s missed deadline to respond to FOIL request; an agency’s ignoring of the FOIL request; an agency’s unreasonable deadline to respond to the FOIL request; and an agency’s withholding of documents based on a FOIL exemption that that we did not agree would apply.

These sample letters should be used only as guide as they cannot address the particular nuances of your FOIL request and the agency’s response. Given that, these sample letters do not give legal advice, and you should not rely on them as legal advice.

Additional Resources

Guide to Public Records Requests for Advocates Seeking Reform of the Criminal Legal System: The Prison Policy Initiative developed this guide for individuals seeking public records from state and federal government agencies through laws like the NYS Freedom of Information Law and the Federal Statute — The Freedom of Information Act (“FOIA”): https://www.prisonpolicy.org/trainings/records.html

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