Over the last two years, the ground beneath us has begun to shift when it comes to accessing government records in New York, particularly those related to policing. Some of these movements have been seismic. Others have been more subtle. But the result is unmistakably clear: New York's Freedom of Information Law (FOIL) is transforming. And whether you are a member of the media, a FOIL officer for a public agency, or even a criminal defense attorney, you should be aware of the progression of changes.

FOIL and §50-a

New York adopted FOIL in the 1970s "under the premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government." Fink v. Lefkowitz, 47 N.Y.2d 567, 571 (1979).

Generally under FOIL, all government agency records are available for public inspection, unless a specific exemption permits the agency to deny access. See Pub. Off. Law §87(2). For example, a state agency is prohibited from releasing records that, if disclosed, would constitute an "unwarranted invasion of personal privacy." The legislature recently repealed one critical exemption to FOIL, New York Civil Rights Law §50-a. Under §50-a, most records related to law enforcement officers were kept from public view. In repealing §50-a, the legislature stated that this portion of the law undermined the purpose of FOIL. Prior to this change, municipalities were exempted from having to produce the records in response to a FOIL request, and prosecutors did not have to produce documents related to officers who testify at trial.