FOIL Appeals
Freedom of Information Law Appeals
The Assistant Commissioner for the Office of Hearings and Mediation Services (OHMS) serves as the Freedom of Information Law (FOIL) appeals officer for the Department of Environmental Conservation (Department). A brief overview of FOIL and the FOIL appeals process follows.
Introduction
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 Appeals
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 Office of Hearings and Mediation Services. Upon receipt of an appeal, an administrative law judge (ALJ) in OHMS will send a letter to the requestor acknowledging the appeal. The ALJ will also ask the Department staff who made the initial FOIL determination to provide OHMS with the records in question along with the rationale for the determination. The ALJ will independently review the withheld records and the reasons provided for withholding them, and make a recommendation to the Assistant Commissioner. On some appeals, the Assistant Commissioner, rather than an ALJ, will conduct the independent review of the records that were withheld.
Once the Assistant Commissioner 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 OHMS will mail the records to the requestor. Alternatively, the requestor will be afforded the opportunity to review the records in the OHMS' office.
The OHMS FOIL 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.
The FOIL Appeals Officer is Louis A. Alexander, Assistant Commissioner, Office of Hearings and Mediation Services, NYS Department of Environmental Conservation, 625 Broadway, 14th Floor, Albany, New York, 12233-1010. Telephone: 518/402-8537, fax: 518/402-9037.
For more information about this posting, contact: The Office of Hearings and Mediation Services
More about FOIL Appeals:
- 2008 FOIL Appeals Determinations - FOIL Appeals for 2008, Office of Hearings
- 2007 FOIL Appeals Determinations - 2007 FOIL Appeals Determinations
- 2006 FOIL Appeals Determinations - 2006 FOIL Appeals Determinations
- 2005 FOIL Appeals Determinations - 2005 FOIL Appeals Determinations
- 2004 FOIL Appeals Determinations - 2004 FOIL Appeals Determinations
