January 06, 2022 Amendments to the Freedom of Information Law and the Civil Rights Law
KEEPING YOU INFORMED…
Last week, Governor Hochul signed legislation, effective immediately, amending the Freedom of Information Law (“FOIL”) and a provision of the Civil Rights Law.
AMENDMENTS TO FOIL
Pursuant to the legislation, agencies must now follow a new procedure to deny access to certain law enforcement records on the basis that the disclosure would interfere with a judicial proceeding. In addition, new language makes clear that agencies are required to have a “particularized and specific justification” for denying access to records, and FOIL does not add to or diminish an individual’s right of access to records pursuant to any other laws.
Denying Access to Law Enforcement Records When Disclosure
May Interfere With a Judicial Proceeding
An agency considering the denial of access to a record based on the exception to FOIL’s mandatory disclosure requirement for records “prepared or created for law enforcement purposes” that would “interfere with a judicial proceeding” must now follow a new procedure to allow for judicial review of the merits of the proposed denial of access.
Prior to denying access to a record, or portion thereof, prepared or created for law enforcement purposes because disclosure may interfere with a judicial proceeding, an agency must promptly notify, in writing, the judge presiding over the pending proceeding and the person making the request. The judge is then required to inform the person requesting the record that the judge received the notice and provide that individual with a “reasonable opportunity to be heard.” After deliberation, the judge must decide whether access to the record should be denied. The judge’s determination must be set forth in a writing to the agency and the person requesting the record. The agency must proceed in accordance with the judge’s determination.
Particularized and Specific Justification
Pursuant to the amendments, an agency cannot deny access to a record or portion of a record “solely” due to the “category or type” of the record at issue. The denial of access to a record or portion of a record requested pursuant to FOIL will only be considered valid when the agency has “a particularized and specific justification” for its denial.
Instead of merely providing an applicant with the FOIL exception to mandatory disclosure that forms the basis for a redaction in a record or for withholding a record in its entirety, the agency should also advise the applicant of the specific nature of the redacted or withheld information (e.g., an agency could state: “Information has been redacted pursuant to Public Officers Law § 87(2)(b) because the information, which includes social security numbers, home addresses and home phone numbers, would, if disclosed, constitute an unwarranted invasion of personal privacy.”).
Right of Access to Records Pursuant to Other Laws and in Other Proceedings
The amendments clarify that the denial of a FOIL request does not prevent a person from obtaining records pursuant to any other law or prevent a party to any civil or criminal action or proceeding from using FOIL to obtain records relevant to the action or proceeding.
AMENDMENTS TO THE CIVIL RIGHTS LAW
The legislation also amends Civil Rights Law § 50-b, which requires records identifying any victim of a sex offense or an offense involving the “alleged transmission of the human immunodeficiency virus” to remain confidential. The amendment clarifies that only the portions of a record that would identify a victim are exempt from disclosure, requiring the remaining portions of the record to be disclosed (unless another basis to redact or withhold the information applies pursuant to FOIL or other legal authority).
If you have any questions regarding this new legislation, or regarding updating your policies, regulations and/or procedures in order to comply with the new legislation, please contact Lindsay Crocker (email@example.com), Lauren Schnitzer (firstname.lastname@example.org) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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