New York Law Review

Tag: Freedom of Information Law (FOIL)

  • NYP Holdings, Inc. v. New York City Police Dept., 2025 NY Slip Op 01009: Retroactive Application of FOIL Repeal and Law Enforcement Disciplinary Records

    2025 NY Slip Op 01009

    The repeal of Civil Rights Law § 50-a, which had exempted certain law enforcement personnel records from disclosure, applies retroactively to records created before the repeal, thereby making such records subject to disclosure under the Freedom of Information Law (FOIL).

    Summary

    The New York Court of Appeals addressed whether law enforcement disciplinary records created before the repeal of Civil Rights Law § 50-a, which shielded certain personnel records from public disclosure, are subject to disclosure under FOIL. The court held that the repeal had retroactive effect, thereby making pre-repeal records subject to disclosure. The decision emphasized the Legislature’s intent to enhance public trust and accountability by increasing access to police disciplinary records, concluding that this purpose would be undermined by exempting pre-repeal records. The court’s decision also weighed the remedial nature of the law and the legislative history to support the decision, which rejected the PBA’s argument that the repeal should only apply prospectively.

    Facts

    NYP Holdings, Inc., and New York Post reporter Craig McCarthy submitted FOIL requests to the NYPD seeking disciplinary records of specific police officers. The NYPD effectively denied most requests, citing that the burden of compliance would be too onerous. The Police Benevolent Association (PBA) intervened, arguing that records created before the repeal of Civil Rights Law § 50-a were not subject to disclosure. The Supreme Court granted the Post’s petition, and the Appellate Division affirmed, determining that the repeal of section 50-a applied retroactively. The PBA appealed to the Court of Appeals.

    Procedural History

    The Supreme Court granted the Post’s petition to compel disclosure, rejecting both the NYPD’s burden argument and the PBA’s retroactivity argument. The Appellate Division affirmed, holding that the repeal of Civil Rights Law § 50-a applied retroactively to records created before the repeal. The Court of Appeals granted the PBA leave to appeal and stayed the Appellate Division’s order pending the appeal’s resolution.

    Issue(s)

    1. Whether the repeal of Civil Rights Law § 50-a applies retroactively to law enforcement disciplinary records created before the repeal.

    Holding

    1. Yes, because the Court determined that the Legislature intended the repeal to have retroactive effect, making pre-repeal records subject to disclosure under FOIL.

    Court’s Reasoning

    The Court of Appeals examined whether the repeal of Civil Rights Law § 50-a should be applied retroactively. The court began by noting that retroactive application of statutes is not favored unless expressly required or implied by the language of the statute. It then assessed that the legislation was remedial in nature and considered other factors relevant to retroactivity, including legislative intent and the statute’s design. The court concluded that the Legislature intended the repeal to have retroactive effect, based on the plain reading and intent of the law as well as its legislative history. The court found that the amendments did not single out records for special treatment based on the date they were created. The court cited legislative history indicating the legislation’s urgent response to public demands for reform and its intent to increase public trust and accountability by allowing access to records related to police misconduct. The court noted that “remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose”. The court found that the legislation was enacted in rapid response to public outcry over the killing of George Floyd by a police officer with an extensive disciplinary record. The court found that the legislative purpose could not be achieved if the pre-repeal records were not subject to FOIL.

    Practical Implications

    This decision reinforces the presumption that government records, including law enforcement disciplinary records, are accessible under FOIL unless specifically exempted. It clarifies that repeals of statutory exemptions may apply retroactively when the legislative intent supports such application. The decision influences the scope of FOIL requests and the records that must be produced, particularly in cases involving allegations of police misconduct, or in cases where a government entity has withheld documents based on now-repealed statutes. This means that media outlets and the public have greater access to disciplinary records, promoting transparency and accountability. This case highlights the importance of legislative intent and the remedial nature of statutes in determining their retroactive application. Attorneys should consider legislative history and the overall purpose of statutes when assessing whether a change in law applies to prior events.

  • Data Tree, LLC v. Romaine, 9 N.Y.3d 458 (2007): Clarifying FOIL Obligations for Electronic Records

    Data Tree, LLC v. Romaine, 9 N.Y.3d 458 (2007)

    An agency must provide access to electronic records under Freedom of Information Law (FOIL) if those records are maintained electronically and retrievable with reasonable effort, but is not required to create new records or undertake burdensome programming to comply with a request.

    Summary

    Data Tree, a commercial provider of online land records, requested electronic copies of Suffolk County land records from the County Clerk via FOIL. The Clerk denied the request, citing privacy concerns and the need to create a new record. The Court of Appeals reversed the lower court’s denial of disclosure, holding that the Clerk bears the burden of proving a specific FOIL exemption applies and that Data Tree’s commercial purpose is irrelevant. The Court remanded the case to determine if the privacy exemption applies and whether the Clerk could provide the records in the requested electronic format without creating a new record or undertaking significant burden.

    Facts

    Data Tree, a company providing online public land records, requested copies of Suffolk County land records from January 1, 1983, to the present. The request specified TIFF images or other electronic formats regularly maintained by the County on CD-ROM or similar media. The County Clerk failed to respond within the statutory timeframe, effectively denying the request.

    Procedural History

    Data Tree filed an Article 78 proceeding after the County Attorney affirmed the denial based on rewriting requirements, privacy concerns, and availability of records at the Clerk’s Office. The Supreme Court denied Data Tree’s request, limiting access to in-person copying or downloading from the internet. The Appellate Division affirmed, citing the privacy exemption and the burden on the Clerk. The Court of Appeals granted Data Tree leave to appeal.

    Issue(s)

    1. Whether the Suffolk County Clerk is required by FOIL to provide the requested land records to Data Tree, LLC?
    2. If so, whether the records must be provided in the specific electronic format requested by Data Tree?

    Holding

    1. No, not necessarily because questions of fact exist as to whether compliance with such request would require the Clerk to disclose information excluded under the privacy exemption of FOIL.
    2. No, not necessarily because questions of fact exist as to whether the Clerk has the ability to comply with the request in the format sought by Data Tree.

    Court’s Reasoning

    The Court emphasized FOIL’s presumption of access to government records, placing the burden on the agency to justify any denial. It stated that the Clerk’s assertion of the privacy exemption must be supported by a “particularized and specific justification.” Data Tree’s commercial motive was deemed irrelevant. Citing Public Officers Law § 89 (2) (b) (iii), the court clarified that while motive can be relevant regarding the release of names and addresses for commercial purposes, that exemption did not apply here because Data Tree was seeking public land records for commercial reproduction, not names and addresses for solicitation. A question of fact existed as to whether the requested documents contained private information that could be redacted.

    The Court also addressed the requirement for agencies to create new records. While agencies aren’t required to create new records, FOIL doesn’t differentiate between paper and electronic records. If records are maintained electronically and retrievable with reasonable effort, disclosure is required. However, Public Officers Law § 89 (3) (a) states that “Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity.” The Court remanded to determine if providing the records in the requested format would require creating a new record, highlighting conflicting affidavits on the Clerk’s capabilities. The Court also noted that an agency doesn’t need to provide preferential treatment to commercial entities, and the time needed to comply with a request may depend on the request’s volume and retrieval methods.

  • Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 84 N.Y.2d 488 (1994): Defining ‘Agency’ Under New York’s Freedom of Information Law

    Buffalo News, Inc. v. Buffalo Enterprise Development Corp., 84 N.Y.2d 488 (1994)

    A not-for-profit local development corporation that channels public funds into the community and possesses many attributes of public entities can be considered an “agency” subject to the disclosure requirements of New York’s Freedom of Information Law (FOIL).

    Summary

    Buffalo News sought access to financial records from Buffalo Enterprise Development Corporation (BEDC) regarding discharged or forgiven loans, arguing BEDC was an “agency” under FOIL. BEDC refused, claiming it was not an agency. The New York Court of Appeals held that BEDC, a not-for-profit local development corporation using public funds for economic development, qualified as an “agency” under FOIL, requiring disclosure of the requested records (subject to any exemptions). The Court emphasized FOIL’s broad scope and the need for liberal construction to ensure public access to governmental information.

    Facts

    BEDC, a not-for-profit corporation, was created to stimulate economic growth in Buffalo. It administered loan programs funded by federal and state governmental entities, assisting local businesses. Membership in BEDC was limited to those residing or doing business in Buffalo. The Mayor of Buffalo and other city officials served on BEDC’s Board of Directors. Buffalo News requested financial records concerning BEDC’s nonperforming loans that had been discharged or forgiven. BEDC provided limited data but refused access to the requested records.

    Procedural History

    Buffalo News filed a CPLR article 78 proceeding to compel disclosure. The Supreme Court denied the petition, finding BEDC was not an “agency” under FOIL. The Appellate Division reversed, concluding BEDC acted as a governmental agency and was subject to FOIL. The case was remanded for an in camera inspection to determine if exemptions applied and whether attorney’s fees should be awarded. The Supreme Court then ordered disclosure of certain documents but denied attorneys’ fees. BEDC appealed to the Court of Appeals based on a two-Justice dissent in the Appellate Division.

    Issue(s)

    Whether Buffalo Enterprise Development Corporation (BEDC), a local development corporation, constitutes an “agency” as defined by Public Officers Law § 86(3) and is therefore subject to the Freedom of Information Law (FOIL).

    Holding

    Yes, because BEDC performs a governmental function by channeling public funds into the community to stimulate economic growth and possesses many attributes of public entities, thus falling within the definition of an “agency” under FOIL.

    Court’s Reasoning

    The Court emphasized the broad purpose of FOIL: “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.” FOIL is to be liberally construed, and its exemptions narrowly interpreted, to grant maximum access to government records. The Court stated that the term “agency” under FOIL must be given its “natural and most obvious meaning” and must be “liberally construed” to further FOIL’s general purpose. Public Officers Law § 86(3) defines an “agency” as “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof.”

    BEDC was created by and for the City of Buffalo to attract investment and stimulate growth. As a city development agency, it is required to publicly disclose its annual budget. BEDC also describes itself as an “agent” of the City of Buffalo. The Court rejected BEDC’s reliance on federal precedents requiring substantial governmental control over daily operations, finding it too narrow. The Court found BEDC’s purpose undeniably governmental and that a constricted construction of “agency” would contradict the expansive public policy dictates underpinning FOIL. Ultimately, the Court concluded that BEDC should be deemed an “agency” within FOIL’s reach in this case, based on its function and connection to the City of Buffalo. The Court affirmed the Appellate Division’s order and the Supreme Court’s judgment to disclose the requested records, subject to FOIL exemptions.

  • Washington Post Co. v. New York State Ins. Dep’t, 61 N.Y.2d 562 (1984): Public Access to Insurance Company Records Under FOIL

    Washington Post Co. v. New York State Ins. Dep’t, 61 N.Y.2d 562 (1984)

    Minutes of insurance company meetings submitted to the New York State Insurance Department are considered “records” under the Freedom of Information Law (FOIL) and are subject to public review unless a statutory exemption applies.

    Summary

    The Washington Post sought access under FOIL to the minutes of board meetings of several major insurance companies held by the New York State Insurance Department. The Department initially refused, arguing the minutes were not “records” under FOIL and were protected by confidentiality. The Court of Appeals held that the minutes are indeed “records” under FOIL because they constitute information kept by a state agency. The Court further found that no statutory exemption automatically applied and ordered an in camera inspection to determine if specific portions of the minutes warranted exemption due to potential competitive injury.

    Facts

    The New York State Insurance Department, as part of its regulatory oversight, examines domestic insurance companies. To facilitate this process, the Department requests copies of insurance companies’ board of directors’ meeting minutes. This practice was formalized through circular letters since 1927. The Washington Post filed a FOIL request seeking access to these minutes from Metropolitan Life Insurance Company, New York Life Insurance Company, and The Equitable Life Assurance Society of the United States. The Insurance Department initially denied the request, citing confidentiality concerns and arguing the minutes were not “records” under FOIL.

    Procedural History

    The Washington Post initiated an Article 78 proceeding to compel disclosure. Special Term granted the petition, finding the minutes were “records” and ordering an in camera inspection for potential exemptions. The Appellate Division reversed, holding the minutes were not “records” because they did not directly aid governmental decision-making. The New York Court of Appeals then reversed the Appellate Division’s decision.

    Issue(s)

    1. Whether minutes of insurance company meetings voluntarily submitted to the New York State Insurance Department constitute “records” subject to disclosure under the New York Freedom of Information Law (FOIL)?

    2. Whether a state agency’s promise of confidentiality to a private entity exempts documents from disclosure under FOIL?

    3. Whether the requested minutes are exempt from disclosure because of a specific state statute or because they contain trade secrets, the disclosure of which would cause substantial injury to the competitive position of the subject enterprise?

    Holding

    1. Yes, because the minutes constitute “information kept, held, filed, produced * * * by, with or for an agency” under the plain language of FOIL.

    2. No, because the definition of “records” under FOIL does not exclude or make any reference to information labeled as “confidential” by the agency.

    3. No, not entirely, because intervenors failed to prove that the records should be exempted in their entirety. However, an in camera inspection is warranted to assess whether specific portions warrant exemption.

    Court’s Reasoning

    The Court reasoned that the definition of “records” under FOIL is broad and encompasses “any information kept, held, filed, produced or reproduced by, with or for any agency”. The minutes fit this definition because they were submitted to and kept by the Insurance Department. The Court emphasized that FOIL is to be liberally construed to grant maximum access to government records. The Court dismissed the argument that the Department’s promise of confidentiality exempted the minutes, stating that confidentiality is only relevant when determining if a statutory exemption applies. Regarding the claim that the minutes should be exempt because they contain trade secrets, the Court found the insurance companies’ claims were conclusory and lacked evidentiary support to justify a blanket exemption. However, the Court acknowledged that some portions of the minutes might warrant protection and ordered an in camera inspection to determine which parts, if any, would cause substantial competitive injury if disclosed. The court quoted from *Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 581*: “The statutory definition of ‘record’ makes nothing turn on the purpose for which a document was produced or the function to which it relates”.