FOIL: Agency Records held by Third Party

New York's Freedom of Information Law requires the production of agency records as defined by the Public Officers Law (Section 84 to 89). When someone makes a Freedom of Information Law Request (FOIL), the agency is supposed to make the non-exempt records that it has in its possession available to the FOIL records requester.

"The question, [in Matter of Broach & Stulberg, LLP, Third Department], distills to whether records that are maintained by a private entity for purposes of demonstrating regulatory compliance constitute records held "for an agency" so as to be subject to disclosure under FOIL (Public Officers Law § 86[4])."

Because a government agency utilizes a private company to maintain its records does not make that entity exempt from FOIL requirements. In other words, an agency cannot claim that a hired or another entity maintains records and therefore it does not have records responsible to a FOIL request. The Court in Matter of Broach & Stulberg, LLP, cited "Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale (87 NY2d 410 [1995]), which essentially held, as relevant here, that where a state agency delegates a duty to perform an essential service to a private, third-party entity for the agency's benefit, the documents received by that private entity for said purposes are considered to be "kept or held" for the agency and, therefore, subject to disclosure under FOIL..."

The Court in Matter of Broach & Stulberg, LLP, Third Department recites the Freedom of Information Law applicable to the search for records:

FOIL does not generally "require any entity to prepare any record not possessed or maintained by such entity" (Public Officers Law § 89[3][a]). However, an agency may nevertheless be required to disclose a record that is not in the agency's actual physical possession if it falls within the broad definition of "record," which is defined as "any information kept, held, filed, produced or reproduced by, with or for an agency" (Public Officers Law § 86[4] [emphasis added]; see Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410, 417 [1995]).

Here, however, the Third Department makes clear that "we do not find the definition of "record" to be so broad and all-encompassing as to bring within its ambit any document that a private entity might create and maintain pursuant to a state agency's regulation under the guise that said records are held "for" that agency." In reversing the lower court, the Appellate Court finds that the respondent should not have had to produce records under these circumstances because, among other things, "The mere fact that respondent has the discretionary regulatory authority to ask the Union for the requested documents does not, ipso facto, render all documents that are created and maintained by the Union with respect to its apprenticeship programs subject to disclosure."

The case is MATTER OF BROACH & STULBERG, LLP v. New York State Dept. of Labor

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

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