Editor's note: The following column was written for the New York News Publishers Association's Newspapers in Education program in connection with Sunshine Week, a nationwide campaign to bring awareness to the importance of and challenges to government transparency:
The New York Freedom of Information Law, known by many as “FOIL”, was initially enacted on the heels of Watergate in 1974, the year that the federal Freedom of Information Act was amended. Our law was weak, and it was completely revised in 1978.
Think about 1978 — high tech was an electric typewriter, we used carbon paper to make copies, there was no internet or email, and how do you have a phone without a cord? We’ve come a long way, and when we were drafting the essence of the current FOIL , we got lucky. We tried to correct the deficiencies in the federal Act and included a definition of the term “record.”
Since ’78, FOIL has defined “record” to mean “any information kept, held, filed, produced or reproduced by with or for an agency or the state legislature, in any physical form whatsoever…” An “agency” is any unit of state or local government, so if a record is maintained by or for a government agency, whether it’s on paper, a tape or video recording, or email, it falls within the coverage of FOIL.
From there, FOIL is based on a presumption of access. All agency records are accessible, except those records or portions of records that may be withheld in accordance with a series of exceptions listed in the law. The exceptions are based on common sense and the likelihood that disclosure would result in a serious invasion of personal privacy, impairment of a governmental function, or sometimes damage to the competitive position of a commercial enterprise.
People ask often whether email must be disclosed. The answer is that email is simply a method of transmitting a record. As in the case of old-fashioned paper records, the content of email and the impact of disclosure are the key factors in determining the extent to which email must be disclosed, or conversely, may be withheld.
What if a town board or school board member, for example, has no office and communicates via email concerning that person’s governmental functions from his or her home and uses a private email address? Yes, it’s a “record” subject to rights of access granted by FOIL. The next question is whether it’s available, and again, that is dependent on its content.
What if one board member sends email to another and offers a recommendation concerning a certain issue, and the other board member emails back and expresses a different opinion? Those kinds of internal government communications that consist of advice, opinions or recommendations may be withheld, according to the state’s highest court. But if the board member backs up an opinion with statistics or facts, those portions of the record ordinarily have to be disclosed.
What if a school board member receives email from a parent who describes a problem involving the parent’s child in school? Something every parent should know is that federal law gives parents of minors rights of access to school records pertaining to their children. But that law also prohibits disclosure of a record about a student to the public, unless a parent of the student consents to disclosure.
Often a law, such as FOIL, will require disclosure to the subjects of records or perhaps the parents of a minor child, but protect personal privacy if the records are requested by others.
One of the topics we’ve heard about lately involves how long email must be kept. The fact is that FOIL deals with access to government records.
Other laws pertain to the retention and disposal of records. In New York, the State Archives, a branch of the State Education Department, develops schedules that prescribe minimum retention requirements for various kinds of records. The more important the record, the longer it usually must be kept. Due to records retention requirements, government cannot simply destroy records because someone doesn’t want them around.
We will probably hear more about email with time. It used to involve the brief, informal note. Today, it’s part of our daily lives, and often, it’s the email message, not the piece of paper, that is critical, inside and outside of government.