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A FOIL request need only "reasonably describe" the records being sought. See Public Officers Law § 89[3](a). The agency's Records Access Officer is charged "to assist persons in reasonably describing records." 21 NYCRR § 1401.2(b)(2). The agency must conduct a diligent search for reasonably described records. See Public Officers Law § 89[3](a); 21 NYCRR § 1401.2(b)(7)(ii).
Be as precise as possible in describing the requested records. Be mindful that Records Access Officers forward FOIL requests to various offices and divisions within large agencies and that various staff may interpret your request differently.
Where terms of art are used in your FOIL requests, cite regulatory definitions of such terms or, if necessary, provide your own explanation of the terms you are using. If helpful, attach or cite materials that illustrate or clarify the records you seek.
All records in an agency's possession are presumptively available under FOIL unless they fall squarely within one of the specific exemptions set forth in Public Officers Law § 87[2]. FOIL covers all records possessed by the agency regardless of whether the agency created the record. However, the agency can assert that it was unable to locate a particular record after a "diligent search" and does not have to describe what specific efforts were made to search for the record.
For that reason, it might be useful to include an "alternative request" for proof of the disposition of any desired records that are not located through a diligent search. Under New York law and regulation, state and local agencies must follow a disposition of records schedule in destroying or transferring records. See Arts and Cultural Affairs Law articles 57 and 57-a; 8 NYCRR Parts 185 and 188.
Note: All of New York's laws are available on the web site of the New York State Assembly. The text of all New York State regulations is available free of charge at the web site of Thompson West - arranged by the New York State Department of State.
Example #1
You are preparing for a Fair Hearing to contest a Home Energy Assistance Program (HEAP) determination pertaining to the size of the HEAP household. The HEAP household definition, found at 18 NYCRR § 393.4(b), uses the term, "one economic unit," but provides no explanation of that term. You wonder whether this HEAP household term has the same meaning as the term, "single economic unit," found in 18 NYCRR § 352.32(e)(2)(i).
Your FOIL request to the New York State Office of Temporary and Disability Assistance (OTDA) might seek the following records and include the following clarifications:
The term, "single economic unit," is found in 18 NYCRR § 352.32(e)(2)(i). The term, "one economic unit," is used in 18 NYCRR § 393.4(b). Neither regulation defines the term, "economic unit." I make this Freedom of Information Law (FOIL) request, pursuant to Public Officers Law § 84 et seq. and 18 NYCRR Part 340, for the following materials:
1. All records pertaining to all rulemaking proceedings involving 18 NYCRR § 352.32(e)(2)(i), including but not limited to:
A. all rulemaking notices publishing in the New York State Register of any proposals, adoptions and/or emergency adoptions, which added, repealed or amended this regulation,
B. All public comments received by your agency and/or its predecessor, the New York State Department of Social Services (NYSDSS), concerning such rulemaking notices, and
C. All assessments of and/or responses to such public comments by your agency and/or NYSDSS;
2. All records beyond those described in ¶ 1 above, including but not limited to guidance documents [ see 19 NYCRR § 265.1(a)], which define, explain and/or provide examples of the meaning of the regulatory term, "single economic unit," as used in 18 NYCRR § 352.32(e)(2)(i); 3. All records pertaining to all rulemaking proceedings involving 18 NYCRR § 393.4(b), including but not limited to:
A. all rulemaking notices publishing in the New York State Register of any proposals, adoptions and/or emergency adoptions, which added or amended this regulation,
B. All public comments received by your agency and/or NYSDSS concerning such rulemaking notices, and
C. All assessments of and/or responses to such public comments by your agency and/or NYSDSS;
4. All records beyond those described in ¶ 3 above, including but not limited to guidance documents [ see19 NYCRR § 265.1(a)], which define, explain and/or provide examples of the meaning of the regulatory term, "one economic unit," as used in 18 NYCRR § 393.4(b); 5. All records which explain or provide examples of the similarities and/or differences between the term, "single economic unit," as used in 18 NYCRR § 352.32(e)(2)(i), and the term, "one economic unit," as used in 18 NYCRR § 393.4(b); 6. In the alternative, if any of the documents described in ¶¶ 1-5 above are no longer in your agency's possession, all records pertaining to the disposition of such documents, including but not limited to the date of destruction or transfer of such documents to another entity, such as the State Archives Center. See Arts and Cultural Affairs Law article 57; 8 NYCRR Part 188.
Example #2
You are challenging the failure of the Suffolk County Department of Social Services (Suffolk DSS) to process Medicaid applications in a timely manner. In your research, you discover that two prior Fair Hearing Decisions have contained "directives in similar cases," in accordance with 18 NYCRR 358-6.3, which ordered the local agency to determine Medicaid eligibility within the time limits set forth in 18 NYCRR § 360-2.4.
Your FOIL request to OTDA [which issued the Fair Hearing Decisions on behalf of the New York State Department of Health (DOH) and which is responsible for local social services districts' compliance with such decisions] might seek the following records and include the following clarifications:
A. Redacted copies of all records of communications pertaining to your agency's enforcement of, and Suffolk County Department of Social Services' (Suffolk DSS's) compliance with, the direction relative to similar cases contained in the Fair Hearing Decision in the Matter of Dominick D., FH #: 3893628J (New York State Department of Health, June 11, 2003), a copy of which is contained in the attached Adobe (pdf) file;
B. Redacted copies of all records of communications pertaining to your agency's enforcement of, and Suffolk DSS's compliance with, the direction relative to similar cases contained in the Fair Hearing Decision in the Matter of N. T., FH #: 4757245Q (New York State Department of Health, April 24, 2007), a copy of which is contained in the attached pdf file.
Please include all records of all communications between your agency and Suffolk DSS, between your agency and the New York State Department of Health (DOH), and/or within your agency with respect to these directions relative to similar cases, including all reports that Suffolk DSS is required by 18 NYCRR § 358-6.5 to submit to your agency as an agent of DOH.
As used in this request, the term, "communications," means the conveyance of information by any means, including such methods as written, electronic, telephonic and face-to-face transmission of information. For any orally expressed communications (such as face-to-face and telephonic contacts), please provide all written and/or electronically entered and/or stored notes pertaining to such communications.
Example #3
You are challenging the adequacy of a standardized notice that is used to reduce Medicaid coverage. You contend that the notice is "incomprehensible" to most recipients because it requires a college graduate reading ability to understand it.
Your FOIL request might seek the following records and include the following clarifications:
1. All data pertaining to the educational grade levels (or reading grade levels) attained by Medical Assistance (MA) recipients in New York State or in any specific region of the state; 2. In the alternative, if no records are located which are responsive to ¶ 1 of this request, all records which contain information derived from reports, studies and/or any other sources pertaining to the educational grade levels (or reading grade levels) attained by:
A. MA recipients in the United States or in any specific region of the United States, and/or
B. Public Assistance (PA) recipients in New York State, in any specific region of the state, in the United States and/or in any specific region of the United States, and/or
C. Supplemental Security Income (SSI) recipients in New York State, in any specific region of the state, in the United States and/or in any specific region of the United States, and/or
D. Adults living near or below the federal poverty guidelines in New York State, in any specific region of the state, in the United States and/or in any specific region of the United States, and/or
E. All adults in New York State, in any specific region of the state, in the United States and/or in any specific region of the United States.
3. All data pertaining to the primary language read, or, in the alternative, spoken by MA recipients in New York State; 4. In the alternative, if no records are located which are responsive to ¶ 3 of this request, all data pertaining to the primary language read, or, in the alternative, spoken by:
A. PA recipients in New York State or in any specific region of the state, and/or
B. SSI recipients in New York State or in any specific region of the state, and/or
C. the general population of New York State or of any specific region of the state.
With respect to ¶ 3 of this request, I will gladly accept statistical tabulations of the requested data or, in the alternative, averages computed from such data.
As used above, these terms have the following meanings:
• "educational grade level" refers to the highest numerical grade in school completed by a recipient. For example, recipients who dropped out of high school during their senior year would have completed 11th grade.
• "reading grade level" refers to the level of reading ability that is expected at a particular numerical grade level. It is not unusual for individuals to have a reading ability that is several years below their numerical grade level. For example, an 11th grader may be reading at only an 8th grade level.
• "statistical tabulations" might include the actual number or percentage of recipients who meet a specific criterion (e.g., Haitian Creole is the primary language of 9% of recipients) or range of criteria (e.g., 107,820 recipients have attained no higher than an 8th grade educational level).
With regard to the data sought in ¶¶ 3-4, please note that some of the State-prescribed application and recertification forms, which PA and MA applicants and recipients are required to complete, simply ask, "What is your primary language?" Other such forms more precisely ask for the "primary language spoken" or the "preferred reading language."
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