NY FOI Ombudsmen: State Must Disclose Records Created in Ordinary Course of Business, Even if Relevant to Investigation


The NYS Committee on Open Government has formally reaffirmed that public records compiled in the normal course of government activity have to be disclosed under the Freedom of Information Law, even if those records are later the subjects of an ongoing criminal investigation. The Albany Times Union requested an advisory opinion after the state’s Homes and Community Renewal agency denied the paper’s FOIL request for the employment records of the governor’s former top advisor, Joe Percocco and Steven L. Aiello. In its denial, the agency claimed that these employment records were compiled for law enforcement purposes and were therefore exempt from disclosure. According to COOG’s eight page opinion on August 26, 2016, the records in question were created in the normal course of agency business, before the criminal investigation, and should be disclosed to the paper. COOG’s opinion centers on the U.S. Supreme Court’s 1988 decision in John Doe Agency, in which the court wrote that “compiled” refers to the time that records are collected and assembled, not the time when they are created.

Click here to view the letter.