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The New York Court of Appeals observed that FOIL “can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short ‘to hold the governors accountable to the governed.’ ”

 

"[T]he statute affords the public the means to attain information concerning the day-to-day operations of State government. By permitting access to official information long shielded from public view, the act permits the electorate to have sufficient information in order to make intelligent, informed choices with respect to both the direction and scope of governmental activities."

 

The New York Freedom of Information Law (FOIL) is based on the principle that “[o]pen and accessible government is a hall-mark of a free society, engendering public understanding and participation.” The courts have consistently recognized that“ ‘the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government,’ ” and that the Legislature enacted FOIL to: “achieve[ ] a more informed electorate and a more responsible and responsive [government].”

 

FOIL "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies." To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted. FOIL expressly provides that an agency that has denied disclosure on the basis of an exemption "shall in all proceedings have the burden of proving entitlement" to the exemption

 

Time and again, the Court of Appeals has observed that the statute “can be a remarkably effective device in exposing waste, negligence and abuses on the part of government; in short ‘to hold the governors accountable to the governed.’ ” The New York Freedom of Information Law   “declares all agency records open to the public unless they fall within one of eight categories of exemptions.” Given the statute’s broad objectives, the Court of Appeals has consistently held that “ The New York Freedom of Information Law is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.’ ” “By their very nature such objectives cannot hope to be attained unless [access to government records] becomes the rule rather than the exception.”

 

The New York The Freedom of Information Law requires a particularized and specific justification for denying access to demanded documents that is more than a “blanket” exemption. A court is to presume that all records are open, and it must construe the statutory exemptions narrowly. The agency is required to "articulate a particularized and specific justification for denying access.'" Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed"  

 

Both the Court of Appeals and the Committee on Open Government have interpreted the statute to impose a robust obligation on agencies to release portions of documents after redacting those portions that are exempt from disclosure.

 

The trend toward an increasingly robust disclosure requirement under the New York Freedom of Information Law culminated in the Court of Appeals’ decision in Gould v. New York City Police Department, 89 N.Y.2d 267, 653 N.Y.S.2d 54 (1996). Gould was a consolidation of three proceedings in which the petitioners sought information from the NYPD related to their arrests. 89 N.Y.2d at 272-73, 653 N.Y.S.2d at 56. In Gould, the NYPD released some of the requested material but withheld the “complaint follow-up reports,” which they claimed were categorically exempt from FOIL’s disclosure requirements under section 87(2)(g) as inter-agency materials. Id. The Court rejected the NYPD’s claim, finding that the complaint follow-up reports contained factual data, which are not exempt under section 87(2)(g). 89 N.Y.2d at 277, 653 N.Y.S.2d at 58-59.

 

The Gould court, after emphasizing FOIL’s policy of “ensur[ing] maximum access to government documents,” stated that “blanket exemptions for particular types of documents are inimical to FOIL’s policy of open government.” 89 N.Y.2d at 275, 653 N.Y.S.2d at 57. Since then, power courts have cited Gould for the proposition that “[w]hen a document subject to FOIL contains both confidential and non-confidential information, agencies are required to prepare a redacted version with exempt material removed.” New York Rifle & Pistol Ass ‘n v. Kelly, 831 N.Y.S.2d 348 (table), 2006 N.Y. Slip Op. 51983(u), 2006 WL 2976759, at *3 (Sup. Ct. N.Y. County 2006) (ordering the NYPD to disclose redacted documents); New York Public Interest Research Group, Inc. v. Cohen, 729 N.Y.S.2d 379, 381 (Sup. Ct. N.Y. County 2001).

 

The Committee on Open Government has similarly interpreted Gould, in conjunction with the “portions thereof” language in section 87(2). In a 2003 advisory letter, the Committee stated that:  the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law... I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by the Department ... for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.

 

It is well established that an agency must articulate a “particularized and specific justification“ for denying access. Indeed, "[i]n this regard, perhaps most importantly, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law." Committee on Open Government FOIL Advisory Opinion 12579 (Mar. 16, 2001).

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