As Buffalo was dealt a deluge of snow, Albany found a flurry of legislation being signed into law by Governor Hochul. One measure, while seemingly benign, addresses a change to New York’s Freedom of Information Law. It is a simple change but one which all records access officers must keep in mind.
Currently, FOIL allows state and local governments to charge fees for producing copies of public records (up to $0.25/page) or the actual cost of reproducing any other record. When records are requested, the records access officer engages a diligent search. (S)he then advises the requester of the records which meet the reasonably described request. If copies are required to be made the records access officer determines the amount and how much will be charged (based on the above).
Chapter 445 of the Laws of 2022 amends Public Officers Law Section 87(1)(b)(iii) and still permits the charging for records; but it also amends it a bit. The change now requires taking into account when the same records are requested by multiple people. Chapter 445 envisions a record request being made and another identical request being made within 6 months of the first. When that happens and the first request is fulfilled electronically, the second request must also be fulfilled at no charge. Further, if a records request is made and another identical request comes in prior to the first being fulfilled, any costs associated with fulfilling the requests are to be shared equally amongst the multiple requesters.
While the justification for the new law is not made entirely clear, presumably, it is to recognize the reality of multiple FOIL requests for the same documents and not charging for performing essentially the same work twice. In this new era where document requests from state and local governments is on the rise, this new law may find greater application. Records access officers should be mindful. Local governments may find it useful to post commonly requested records (e.g. collective bargaining agreements) directly on websites. This aids open government and may reduce work from often-strained public information offices.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey