I was recently involved in a request for agency documents under the New York Freedom of Information Law. While the request was to a fire district, not to a fire company, the rules would be the same (but I think that guidance might be helpful on account of lack of quick access to legal expertise in some departments). The following attempts to explain the rules and the procedure.
Every New York State or municipal department, board, commission, committee, public authority, public corporation or other governmental entity performing a governmental or proprietary function is subject to FOIL, codified in the Public Officers Law Article 6, Sections 84-90. Each of these governmental entities is an “agency.” That includes fire districts, fire departments and, in certain cases, volunteer ambulance departments.
The applicability of FOIL to fire companies was established by the New York Court of Appeals in Westchester-Rockland Newspapers v. Kimball. That case involved records relating to a lottery conducted by a volunteer fire department. The Court held that volunteer organizations, despite their status as not-for-profit corporations, are “agencies” subject to FOIL where the local government relies on them for performance of essential public service.
So, not only are records of the fire company obtainable through FOIL, even non-firematic records, such as meeting minutes and marketing receipts are obtainable. The New York Appellate Division, in Matter of Hayes v. Chestertown Volunteer Fire Company, reviewed the determination of the respondent fire company which denied the petitioner’s FOIL requests relating to “non-firematic” records.
The fire company maintained that as a private company its “non-firematic” records were not subject to FOIL. The petitioner brought an Article 78 proceeding seeking to compel the fire company to comply with its FOIL requests. The Appellate Division held that there should be no differentiation between records concerning public, or “firematic,”and private functions of the fire company. If the fire company was an “agency” subject to FOIL the requested records, without regard to whether they related to governmental or nongovernmental functions, required disclosure (unless one of the exceptions set forth in Public Officers Law §87(2), discussed below, was applicable).
The applicability of FOIL to volunteer ambulance companies was reviewed by the Appellate Division of the Supreme Court of New York in Matter of Ryan v. Mastic Volunteer Ambulance Company. The Court determined that the Mastic Volunteer Ambulance Company, which received government funding, “performs a governmental function, and it performs that function solely for the Mastic Ambulance District, a municipal entity and a municipal subdivision of the town of Brookhaven. The appellant submits a budget to and receives all of its funding from the Town, and the allocation of its funds is scrutinized by the Town. Thus, the appellant clearly falls within the definition of an agency and is subject to the requirements of FOIL.”
The New York Committee on Open Government has issued an opinion (FOIL-AO-18149, 6/17/2010), clarifying the determination and reach of the Ryan court. It noted that the Mastic Volunteer Ambulance Company performed its duties for an ambulance district which is itself a public corporation, but if there was no such relationship “it would appear that the organization would fall beyond the coverage of the Freedom of Information Law.”
A FOIL request made to your agency must be addressed to the “Records Access Officer” and may be delivered by hand, by mail or by email (every agency subject to FOIL, provided that it has the ability to receive requests for records from the public and transmit records by means of email, is required to do so). According to the New York Department of State, when an agency has the technology to scan a record without an effort additional to responding to a request in a different manner, and a request is made to supply the record via email, the agency must do so to comply with FOIL.
All records maintained by the agency must be produced unless an exception permits an agency to deny access. Reasons for denial of access are set forth in §87(2) of the law. Among them are records (a) specifically exempted from disclosure by state or federal statute; or (b) if disclosed would constitute an unwarranted invasion of personal privacy; or (c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations; or (d) which are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise; or (e) which are compiled for law enforcement purposes and which, if disclosed, would i. interfere with law enforcement investigations or judicial proceedings; ii. deprive a person of a right to a fair trial or impartial adjudication; iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures; or (f) if disclosed could endanger the life or safety of any person.
Under the law your agency has five business days to grant or deny access in whole or in part, or if more time is needed, to acknowledge the receipt of the request in writing and indicate an approximate date by which the agency will respond to the request. Your agency may reject a request that does not “reasonably describe” records. However, if the request is too vague to answer, you must seek clarification of the request. Your agency’s failure to comply with any of the time limitations imposed by law would constitute a denial of a request that may be appealed within thirty days to the person designated by the agency to determine appeals or the chief executive or governing body of the agency. If your department does not have a person designated to determine appeals, I suggest that the proper person would be the President of the fire company. If the determination of an appeal is not rendered within ten business says the person making the request may initiate a proceeding to challenge the denial of access under Article 78 of the Civil Practice Law and Rules.
The bottom line is if your department does receive a FOIL request, no matter what the request, it must respond to the request and, if records will be withheld, there must be a valid reason and such reason must be articulated promptly. Your department’s attorney should be consulted.
