Citation for FOIL Violations, Penal Law FOIL Consequences

Public Records Violations are a codified Penal Law Offense together with the Public Officers Law Section 89(8) but who enforces the law against the Public Officers who are tasked with enforcing the law? While the question has been litigated by this office in the state and appellate courts, the New York Freedom of Information Law (FOIL) cases, we have yet to see a FOIL Violation actualy come by citation

Wendy Liberatore, Spa official ticketed for records violation, Times Union (December 5, 2024), https://eedition.timesunion.com/infinity/article_popover_share.aspx?guid=46402d10-4e65-4713-914c-0c918b8f3c21&share=true discusses the interesting issue of what consequences does a public officer, elected or otherwise paid by the public, suffer when s/he decides to withhold public property: Records as defined by Public Officers Law Section 86.

Wendy Liberatore writes the situation out well - even quotes the New York Committee on Open Government in what sounds like a first - that results in quasi-criminal citations for withholding public records under the law:

The city’s Democratic commissioner of accounts will be ticketed for allegedly failing to fulfill three Freedom of Information Law requests from the city’s Republican chair...GOP Chair Michael Brandi...

“I just want to be able to exercise my rights under FOIL without fear or favor,” Brandi said in an emailed statement. “This should not be a big ask, but a foundational right of any citizen.”

Deputies said they submitted the noncriminal complaints to city court on Nov. 26, and summonses were issued.

Brandi alleges that Moran issued three false sworn certifications, which “appear to have been made with the intent to conceal public records and obstruct the Freedom of Information Law process,” regarding records that referenced the city’s proposed short-term rental legislation. Brandi said he was seeking emails, text messages and social media posts on the matter.

Rare as it may be, some public officials may find records produced under the law, the FOIL, damaging. Attempts to thwart the New York Public Officers Law, FOIL, can and should be met with criminal violations but are not. Although a penal law infraction it is a violation, not a crime, and the Public Officers Law 89(8) cites the same non-criminal violation and a nominal fee for what can be serious offenses:

Brandi alleges Moran responded to his requests by saying that he had no records that met their parameters. Brandi said Moran’s statements “were proven untrue.” He points to a series of text messages from Moran, shared with the Times Union, that advised a third party to, as Brandi described it, “use his personal phone in an effort to avoid FOIL disclosures, stating, ‘(t)his is the non foilable personal phone....'

The matter is discussed further by the Times Union, Wendy Liberatore, Spa official ticketed for records violation, Times Union (December 5, 2024), https://eedition.timesunion.com/infinity/article_popover_share.aspx?guid=46402d10-4e65-4713-914c-0c918b8f3c21&share=true.

Cory H. Morris, Esq. New York and Florida, Accountability, Transparency, Public Records in State and Federal Court, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA).

New York State Traffic Accidents, Criminal Attorney, Appellate Attorney, Suffolk County Speeding, Traffic Accidents and Nassau County Traffic Violations and Accident Injury, Freedom of Information Law and CPLR Article 78 and Appeals;

Accountability, Transparency and Access to Public Records in New York State | Call 631-450-2515 or E-Mail info@CoryHMorris.com to arrange for an evaluation of your Freedom of Information Law or Appellate matter).

PS: Interesting discussion about the complainant here, the person whose right to records was violated:

"Brandi, an attorney, has filed four lawsuits against the city in the past 14 months.

He won a suit that determined the City Council in 2023 violated state Open Meetings Law when its members emailed each other about the city allowing bars to be open early for a Buffalo Bills game being broadcast from London. He also filed a successful lawsuit on another Freedom of Information Law request for which he was awarded legal fees.

Brandi also filed two suits in an attempt to stop legal fees from being paid to cover another matter involving Golub and Moran after they were subpoenaed about a change in a city-approved resolution allowing overtime to be paid to the city’s politically appointed deputies."