Wrapped in Foil!

Many, many years ago, I worked for an overly demanding boss. One day when New York City was being pummeled by record snows – one of those memorable blizzards where people were skiing down empty Manhattan avenues – my boss emerged from his office demanding that the mail be brought to him. When the receptionist, one of the few people who actually made it into the office that day, told him that because of the blizzard, there would be no mail delivery that day, he barked in full voice so the whole world could hear: “They have to deliver the mail! IT’S THE LAW!!” Ah, if life were only so simple. Take, for instance, the New York Freedom of Information Law (FOIL). On its face FOIL is a wonderful tool. It allows anyone to obtain records or documents maintained by any State agency simply by requesting them. If a State agency prepares a document or record that you want, it is required to make it available to you. The basic premise for the law, which exists in some form or another in all states plus in Federal law, is set forth in the legislative Declaration section of Article 6 of the New York Public Officers Law, which states in part:

“The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.”

The law also includes a number of exceptions, of course, mostly dealing with invasion of privacy (for others, not the agency), confidential information, trade secrets, interference with a pending proceeding, or anything that might endanger a person or persons if released. These exceptions are often used as excuses for delaying or denying legitimate requests. The courts, however, have been helpful in supporting the purpose of FOIL. For instance, the courts have made it clear that the burden in denying access to any document or record is on the agency – not the requesting party — and have also confirmed that FOIL does not require the party requesting the information to show any particular need or purpose for the request.

One of the restrictions of the statute is that an agency does not have to create a new document to comply with a record request. However, a 2007 Court of Appeals decision (In the Matter of Data Tree, LLC v. Edward P. Romaine, & Co.) held that reformatting electronic data to meet a specific request is not necessarily the creation of a new record. The court stated “if the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information.” The principle holdings of the case were included in a 2008 amendment to the law making it clear that the burden will be on the agency to justify a denial of access to government records, and that denial of access cannot be based on the form in which the records are maintained.

Each agency is required to establish its own procedures for handling FOIL requests, and if the agency has a website it is required to include this information on the website. The Insurance Department, has complied with this requirement for a number of years and now the DFS seems to be following suit. Requests can be made via mail, fax or electronically through the DFS website. The online form is easy to follow, although the process seems unduly cumbersome in one respect. When making a request using the online form you receive an acknowledgement with a confirmation number.

However, in a few days you receive a second e-mail with a new tracking number that is different from the original confirmation number. This second notice advises which bureau will be responding to the request, and that you should be receiving their response within 20 business days (that’s four full work weeks!). The response will either be that the requested records will be provided and the cost, if any, of providing the records, or that the records are not available or are subject to an exemption from disclosure. If you disagree with a determination denying the records, there is an administrative appeal process and ultimately recourse to the courts.

My record with FOIL requests to the Insurance Department over the years was generally good. It helps a lot if you are precise in describing the requested records, and if you know where in the Department the specific records are kept. The Department is a big operation with many units, and it is not always obvious where certain records are maintained.

Patience is very important! I cannot recall how many times I was told such and such records did not exist until I was able to suggest where they might look, or to refer to the specific statutory requirement for maintaining the requested records. I have also had some frustrating experiences where records have been denied or redacted to such extent as to render them useless on some basis that I considered to be outside the spirit of the law.

Why the lesson on FOIL now? With the merger of banking and insurance (banking has its own FOIL process) finding where records are maintained may even be more difficult, and early indications are not encouraging that the new DFS is anxious to share its records. In a column earlier this year I described how the annual report of the Superintendent was a mere shadow of its former self in providing information about the insurance business in the State (“DFS Report: Size and Content May Send a Message,” June 18, 2012). The signs seem to point to an administration that believes that less is more when it comes to sharing information with the industry and the consumer. FOIL can help counter this course through requests for records of the Department that, for whatever reason, it has elected not to share.

At the time I submitted this column, I had two open record requests seeking records that have routinely been a part of the Superintendent of Insurance’s annual reports in the past but which the DFS has chosen not to share publicly. Among other things, the information I have requested includes details of the surplus lines business written in the state, details of free zone writings, and information about the staffing of the Department. These requests have been outstanding beyond the statutory requirement for response. In fairness, Superstorm Sandy intervened and as noted patience is important.

There are many other areas where details previously provided were not proved this year, or which many of you know are collected on a regular basis by the Department that are no longer made available. Do not forget about FOIL as a tool if that information is meaningful to your business or to your customers!

And be persistent. Remember, to paraphrase my former boss: “They have to give it to you. IT’S THE LAW!”