The FOIL Appeals Process
Submitting an Appeal
To appeal a denied FOIL request for Department of Environmental Conservation records, send a letter or FAX to:
FOIL Appeals Officer
New York State Department of Environmental Conservation
Albany, NY 12233-1500
phone: (518) 402-9185
fax: (518) 402-9018
A brief overview of FOIL and the FOIL appeals process follows.
FOIL (Public Officers Law (POL) §§ 84-90) requires that governmental agencies provide the public with access to government records. When requests for records are made to the Department, a FOIL access officer from a regional office or central office will make an initial determination to release or withhold the records. FOIL requires that agencies respond to a request for records in five business days by either providing access to the records, denying access, or by stating when the Department will make a determination on the request (POL § 89(3)).
FOIL provides that access to specified categories of documents may be denied, including records that, if disclosed, would constitute an unwarranted invasion of personal privacy, that are specifically exempted from disclosure by state or federal statute (such as attorney-client communications), that if disclosed could endanger the life or safety of any person, or that are inter-agency or intra-agency materials. For a more complete listing of these categories, see POL § 87(2).
FOIL provides for an appeals process in the event that a request is not handled in a timely manner or where a requestor disagrees with the determination to withhold certain records. Section 616.8 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) sets forth the procedures for filing an appeal with the FOIL Appeals Officer. Upon receipt of an appeal a letter will be sent to the requestor acknowledging receipt of the appeal. The Appeals Officer will also ask the Department staff who made the initial FOIL determination to provide her with the records in question along with the rationale for the determination. The Appeals Officer will independently review the withheld records and the reasons provided for withholding them.
Once the Appeals Officer makes a determination on the appeal, the requestor will be advised of the decision. If it is determined that records previously withheld should be released, the requestor will be asked to remit a check for the reproduction costs. Section 616.30 of 6 NYCRR provides that the Department will charge a rate of .25/page for each record or the actual cost of reproduction for materials that cannot be photocopied. Once those fees are received, the FOIL Appeals Officer will mail the records to the requestor. Alternatively, the requestor will be afforded the opportunity to review the records in the Department's central office in Albany, New York.
The FOIL Appeal Officer's determination represents a final agency action. POL § 89(4)(b) provides that if access to records is denied, a requestor may commence a proceeding in state supreme court pursuant to Article 78 of the New York Civil Practice Law and Rules.
From 1997 to June 2008 FOIL Appeals were handled by the Office of Hearings and Mediation Services.