The City of Troy, New York, "Where Henry Hudson Turned Around."

Friday, December 21, 2007


A recent Court of Appeals decision has held that the government bears the burden of establishing exemptions under the Freedom of Information Law.

In The Matter of Data Tree LLC v Edward P. Romaine, the Court stated that a county clerk must provide more than a mere plausible explanation for denying a FOIL request, reversing the previous "any old bullshit explanation will do" standard. No more, "not today, honey, I have a headache."

In order to deny disclosure, the Clerk must show that the requested information "falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" (Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562 [1986]; see M. Farbman & Sons, Inc. v New York City Health and Hospitals Corp., 62 NY2d 75, 80 [1984]; Fink v Lefkowitz, 47 NY2d 567, 571 [1979]). If the Clerk fails to prove that a statutory exemption applies, FOIL "compels disclosure, not concealment"

Another interesting part of the decision is that the government can no longer refer people to their website in response to requests for information.

We've also been told (but haven't confirmed) that attorneys fees will now be awarded to individuals who must sue the government to get their FOIL responses.

This should be greeted as good news for those trying to wrench public information out of municipalities such as Troy. Remember, when you deny a FOIL request, you're only hurting the taxpayers.

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