Protecting the Freedom of Information Law

March 29, 2013

In its 2012 Annual Report, the State of New York Committee On Open Government called upon state agencies to use new technologies to “proactively disclose” information in order to increase government transparency. State agencies have been complying with New York’s Freedom of Information Law (FOIL) by having the public submit written requests to “pull” records, but with advances in technology, agencies have been encouraged to make such records available on their websites. However, an agency is still required to fully responded to FOIL requests by performing a diligent search for responsive documents, even if those documents are available on the internet.

The National Center For Law And Economic Justice (NCLEJ) is an organization dedicated to advancing the cause of economic justice for low-income families, individuals, and communities across the country. Recently, the organization submitted a FOIL request to the New York State Education Department (State Ed), asking for disclosure of agency documents containing policies and procedures on converting materials into alternative formats (such as Braille, large print, audio CD, audiotape, accessible electronic format, etc.) for individuals who are blind and those with visual impairments. However, rather than produce documents as required under FOIL, State Ed pointed the NCLEJ to its website and suggested overly broad search terms.

A Kaye Scholer team consisting of Counsel Bert Slonim and Associates Daphne Morduchowitz, Joseph Clark and Ori Blum took on the NCLEJ’s case pro bono after being referred by New York Lawyers for the Public Interest. After an administrative appeal was denied, they filed an Article 78 petition arguing that while placing documents on the Internet may lessen the need for a member of the public to submit a FOIL request for them, it does not excuse an agency from responding to a request if one is submitted. In addition, they emphasized that many groups do not have widespread access to the internet, including many whose interests the NCLEJ seeks to advance.

Upon receiving the petition, State Ed quickly agreed to fulfill its FOIL obligations by performing a diligent search and producing the documents requested, which were sent to NCLEJ on March 13, 2013.

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