Submission Date:
Question:
Does a contractor have to comply with FOIL request if they are contracted to a county government?
We have a [person] requesting information about a Security Guard who is a Contract Employee (employed by another government entity). All I know is the Guard's 1st name- which is on no paperwork we have. I have already told the requestor that the Guard is employed by an outside company. We are [REDACTED] County government and contract through [REDACTED Other Public Agency] - What do we have to do legally?
Answer:
New York's Freedom of Information Law, or “FOIL”, applies to government agencies (including public libraries) but cannot be used to compel private companies (or individuals) to allow inspection or copying or records.
So, in the scenario described by the member, the private company employing the guard is not subject to FOIL, but the library is, as is the county, so information about the security company can be accessed.
Of course, that doesn't mean a person gets everything they might want, but it does mean that information about private companies working for public entities can be accessed.
We'll talk about this in more detail, but to illustrate my point, here is a short, one-act play:
CITIZEN (to security guard at public library): Who are you?!?! The Power of FOIL compels you!
SECURITY GUARD: Well, as you can see on my ID, my name is Phil. But I am not subject to FOIL. Ask my boss.
CITIZEN (to Phil's private employer, whose company name and logo are on the ID): Who is that guy "Phil"?!? What's his last name and his qualifications?!? What does he get paid a year?!? The Power of FOIL compels you!
PRIVATE SECURITY COMPANY: We're so glad you like Phil! We do, too. Unfortunately, we are not subject to FOIL, and we don't provide information about private employee to third parties.
CITIZEN (to the library): Your private security company is hiding information! Tell me everything about Phil! EVERYTHING!!! The Power of FOIL compels you!
LIBRARY (answering within 5 days): Your request is a bit broad, but we do have records relating to how we arranged the services of a security company through the County. Would you like to inspect those records, or be provided with copies?
CITIZEN (to the county): I don't just want to know "the arrangement," I want to know about Phil, the actual guy providing security at the Library! Give me all the information you have on him!!! The Power of FOIL compels you!
COUNTY (replying within 5 days, and helping to narrow down the request): We are not quite sure what you're asking for, but we can definitely provide information about the security company. Do you want just the contract, or the complete procurement process, including their proposal?
[End Scene]
Of course, in this (hopefully fictional) scenario, the citizen asking for the information might not be able to get (such as what "Phil" is making per hour, or Phil's address, or Phil's resume). But if the information the person is really hoping to access falls into the accessible materials held by an entity subject to FOIL (like a county or a public library), they will hopefully get what they need.
Unfortunately, we live in a world where many times requests under FOIL can be perceived as aggressive. And sometimes the FOIL request is clearly being made by a person with an axe to grind.[1]
That's one of the many prices, to be cheerfully paid, of living in a democracy. Good government thrives on transparency, and prompt disclosures show respect for the public, as well as competence.
In my experience, the best way for an entity subject to FOIL to de-escalate any hostility accompanying a FOIL request is to:
- Always require that employees be treated with respect;
- Have a clearly articulated and easily located FOIL policy;
- Have clarity within the organization as to who is responsible for requests and appeals under FOIL[2];
- Maintain records in such a way that FOIL requests are easy and economical to fulfill;
- Allocate time and budget to train the person responsible for responding to FOIL request, so they know what to do (and when to consult a lawyer).
All of the above-listed bullets can be achieved through a policy that sets out the proper timelines and procedures for following the law.
The great thing about a FOIL request being submitted to a library is that if there is one thing librarians know how to do, it's how to help people find information. So, unlike other "agencies" subject to FOIL, where records management and disclosure can be perceived as a hassle, in some ways, fulfilling a FOIL request is just business as usual: enable access.
The below "Template Public Library FOIL Policy" is based on the model policy supplied by the New York State Committee on Open Government (the COOG), found at https://opengovernment.ny.gov/freedom-information-law. Since it is right from the COOG (with a few added bells and whistles from me), it checks all the boxes on mandatory reply times, providing copies, and how to reply to a request.
Having a policy, and a posting a summary setting out how to request a library record under FOIL, is a good way to diffuse any tension underlying a FOIL request.
As with any template, before a public library's board passes a version based on this one, it is best to have it reviewed by your library's lawyer.
NAME Public Library FOIL Compliance Policy
|
Date adopted: INSERT |
To be posted at: INSERT |
Position primarily responsible for coordinating compliance: INSERT
|
Records Access Officer: INSERT
FOIL Appeal Officer: INSERT
Position Responsible for annual check of Subject Matter list: INSERT
|
Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support. |
Appendix: Model FOIL Notice for posting
|
Related policies: Record Retention Policy |
Section 1: Purpose and scope of this FOIL Compliance Policy:
The NAME Library (the "Library") believes in the right of the People to know the process of decision-making and to have access to the documents and information underlying the operations of the Library.
In addition, a part of the mission of the Library is to enable access to information the public is entitled to.
To that end, the Library shall furnish to the public the information and records required by the Freedom of Information Law, using this policy to enable, effect, and document such compliance.
Section 2: Designation of Library Records Access Officer:
- The Library designates the following person(s) as "Records Access Officer(s)":
Job title or name: _____________________________________________
Business address: _____________________________________________
Email address: ________________________________________________
- The Records Access Officer is responsible for ensuring appropriate library response to public requests for access to records, and shall ensure that the Library:
- Maintains an up-to-date subject matter list of type of Library records, based on the categories of documents in the LGS-1[3].
- Assist persons seeking public library records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records.
- Contact persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested.
- Upon locating the records, take one of the following actions:
- Make records available for inspection; OR,
- Deny access to the records in whole or in part and explain in writing the reasons therefor.
- Upon request for copies of records:
- Make a copy available upon payment or offer to pay established fees, if any, in accordance with Section 8 of this Policy; OR,
- Permit the requester to copy those records under appropriate supervision to ensure the records' physical integrity.
- Upon request, certify that a record is a true copy; and
- The NAME Library is not the custodian for such records; OR,
- The records of which NAME Library is a custodian cannot be found after diligent search.
- Upon failure to locate records, certify that;
Section 3: Location
Records shall be available for public inspection and copying at:
(Location)____________________________________
(Address)____________________________________
____________________________________________
____________________________________________
____________________________________________
Section 4: Hours for public inspection:
Requests for public access to records shall be accepted and records produced during all hours the Library is regularly open for business, however, timing of fulfillment will be impacted by staff capacity.
Section 5: Requests for public access to records
- A written request may be required, but oral requests may be accepted when records are readily available.
- If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
- A response shall be given within five business days of receipt of a request by:
- informing a person requesting records that the request or portion of the request does not reasonably describe the records sought, including direction, to the extent possible, that would enable that person to request records reasonably described; OR,
- granting or denying access to records in whole or in part; OR,
- acknowledging the receipt of a request in writing, including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and shall not be more than twenty business days after the date of the acknowledgment, or if it is known that circumstances prevent disclosure within twenty business days from the date of such acknowledgment, providing a statement in writing indicating the reason for inability to grant the request within that time and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part; OR,
- if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment specifying the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.
- In determining a reasonable time for granting or denying a request under the circumstances of a request, the Library shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
- A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which the Records Access Officer (or other employee):
- fails to grant access to the records sought, deny access in writing or acknowledge the receipt of a request within five business days of the receipt of a request; OR,
- acknowledges the receipt of a request within five business days but fails to furnish an approximate date when the request will be granted or denied in whole or in part; OR,
- furnishes an acknowledgment of the receipt of a request within five business days with an approximate date for granting or denying access in whole or in part that is unreasonable under the circumstances of the request; OR,
- fails to respond to a request within a reasonable time after the approximate date given or within twenty business days after the date of the acknowledgment of the receipt of a request; OR,
- determines to grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request, but fails to do so, unless the agency provides the reason for its inability to do so in writing and a date certain within which the request will be granted in whole or in part; OR,
- does not grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request and fails to provide the reason in writing explaining the inability to do so and a date certain by which the request will be granted in whole or in part; OR,
- responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which that will be accomplished, but such date is unreasonable under the circumstances of the request.
Section 6: Subject matter list
- The Library shall maintain a reasonably detailed current list by subject matter of all records in its possession, based on the categories of records set forth in the LGS-1, whether or not records are available pursuant to subdivision two of Section eighty-seven of the Public Officers Law.
- The "Subject Matter List shall be sufficiently detailed to permit identification of the category of the record sought; the LGS-1 breakdown and description of record categories is the default system the Library shall use. Whenever possible, this Subject Matter List shall accord with the categories in the Library's [Document Retention and Destruction Policy OR equivalent].
- The Subject Matter List shall be updated annually by POSITION. The most recent update shall appear on the first page of the subject matter list.
Section 7: Denial of access to records
- Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individual or body established to determine appeals, [who or which] shall be identified by name, title, business address and business phone number.
- If requested records are not provided promptly, as required in Section 5 of this policy, such failure shall also be deemed a denial of access.
- The following "FOIL Appeal Officer" shall determine appeals regarding denial of access to records under the Freedom of Information Law:
Name: ___________________________________________________
Title or position: ____________________________________________
Address for FOIL purposes:___________________________________
_________________________________________________________
Phone number:____________________________________________
- Any person denied access to records may appeal within thirty days of a denial.
- The time for deciding an appeal by the individual or body designated to determine appeals shall commence upon receipt of a written appeal identifying:
- the date and location of requests for records;
- a description, to the extent possible, of the records that were denied; and
- the name and return address of the person denied access.
- A failure to determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.
- The person or body designated to determine appeals shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue, Suite 650
Albany, NY 12231
- The person or body designated to determine appeals shall inform the appellant and the Committee on Open Government of its determination in writing within ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth subdivision (f) of this section.
Section 8: Fees
- There shall be no fee charged for:
- inspection of records;
- search for records; or
- any certification pursuant to this part.
- Copies may be provided without charging a fee.
- Fees for copies may be charged, provided that:
- the fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
- the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or
- an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.
- an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
- the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
- the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.
- The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
- When the Library has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the Library shall retrieve or extract such record or data electronically. In such case, the Library may charge a fee in accordance with Section 8.3 above.
- The Library shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.
- The Library may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.
Section 9: Public notice
A notice containing:
- the title or name and business address of the Library Records Access Officer
- the title or name and business address of the Library's FOIL Appeal Officer
- the location where records can be seen or copied
shall be posted in a conspicuous location in the Library, and on the Library website at ADDRESS.
Section 10: Severability
If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.
NAME Public Library FOIL Compliance Public Notice
|
Date adopted: INSERT |
To be posted at: INSERT |
Position primarily responsible for coordinating compliance: INSERT
|
Records Access Officer: INSERT
FOIL Appeal Officer: INSERT
Position Responsible for annual check of Subject Matter list: INSERT
|
Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support. |
Appendix: Model FOIL Notice for posting
|
Related policies: Record Retention Policy |
YOU HAVE A RIGHT TO SEE YOUR LIBRARY'S PUBLIC RECORDS
The amended Freedom of Information Law ("FOIL"), which took effect on January 1, 1978, gives you the right of access to many public records, including many of those related to the operation of your public library.
Records related to the Library, if not considered exempt from FOIL, can be seen and copied at:
(Location)____________________________________
(Address)____________________________________
____________________________________________
____________________________________________
____________________________________________
The following Library employee(s) will help you to exercise your right to access:
Library Records Access Officer(s)
(name)_____________________________________________
(job title)____________________________________________
(business address)_____________________________________
____________________________________________________
(phone #)____________________________________________
If you are denied access to a record, you may appeal to the following person(s) or body:
(name)_____________________________________________
(job title)____________________________________________
(business address)_____________________________________
____________________________________________________
(phone #)____________________________________________
[1] I personally have ground down at least three metaphorical axes, making FOIL requests over the years.
[2] These will be different people/groups.
[3] LGS-1 is the NYS Archives Retention and Disposition Schedule for New York Local Government Records and can be found at: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page
Tag:
FOIA/FOIL, Policy, Public Libraries, Record Retention, Records Management, Templates