From: News from the New York State Archives, Region 1, August 2008
Changes in FOIL: The New York State Legislature has changed New York’s freedom of information law (FOIL). Below are some of the changes to the law which may affect how you manage your government’s records and information!
The legislation makes several amendments to §87 of the public officers law to provide guidelines for determining the actual cost of reproducing a public record when a copy of such a record is provided to the public under the Freedom of Information Law (FOIL) and the traditional per page photocopy fee may not be applicable. A new paragraph (C) of subdivision 1 of §87 is added to provide that the public may and can only be charged an amount equal to the hourly salary attributed to the employee or employees required to produce a copy of the record and the actual cost of the storage device or media provided to the public in complying with the FOIL request, and the actual cost to a public agency of engaging an outside professional service to produce a copy of the record or records, if the agency needs to engage an outside entity in order to comply with the FOIL request.
Subdivision 5 of § 87 is also amended to require a public agency to provide copies of records in the format and on the medium requested by the person filing the FOIL request if the agency can reasonably do so. The subdivision is further amended to prohibit a public agency from entering into a contract for the creation or maintenance of records if such a contract impairs the right of the public to inspect or copy that agency’s records.
Subdivision 2 of §89 is amended to clarify the restriction on the sale or release of lists of names and addresses when the use of such lists for solicitation or fund raising purposes is deemed an unwarranted invasion of personal privacy.
Subdivision 2 of §89 is further amended to clarify that public records related to the ownership, title or interest in real property and details related to such property or properties shall not be deemed a “list of names and addresses” under paragraph (b) of such subdivision.
Subdivision 3 of §89 is amended to ensure that FOIL requests for public documents are complied with and that an agency cannot use the excuse that the FOIL request is voluminous, burdensome or it lacks the staff to copy the documents. Because of the new amendment to §87 (1)(C) the agency may recover any costs in complying with the request including having an outside entity to provide copying, programming or other services needed to provide such copies. The amendment to this subdivision also enables a public agency to require that a person requesting lists of names and addresses provide a written certification that the person will not use the lists for solicitation or fund-raising purposes and that such person will not sell, give or make such lists available to others to use for such purposes. The section is further amended to clarify that any programming necessary to retrieve a public record maintained in a computer storage system shall not be deemed the creation or preparation of a new record. This clarification would prohibit an agency from denying a FOIL request on that ground.
Finally, paragraph (f) of §80l9 of the CPLR related to fees for copies of records is amended to cover the actual costs for copies in a format other than paper to be consistent with the above describe amendment to §87 of the public officers law defining “actual costs.”