When we were drafting the new law in 1977, we couldn’t have predicted the future. But we got lucky. It was a time when we began to think about how the law might apply to computerized information. Since 1978, FOIL has applied to all records of state and local government agencies and, most importantly, has defined the term “record” to include any information “in any physical form whatsoever” kept, held, filed produced or reproduced by, with or for a government agency. That means that FOIL applies to the old-fashioned 8 ½ by 11 sheet of paper, as well as the content of databases, email, videotapes - - in short, anything that contains information and is maintained by or for the government is a “record” that falls within the coverage of FOIL and is accessible, in whole or in part, depending on its content and the effects of disclosure. 

 

We at the Committee on Open Government, which was created as part of FOIL, are constantly trying to find ways to make the law work better for citizens. Five years ago, we learned that the Mexican government placed terminals throughout the country and that 90% of the requests made under the new Mexican access to information law were made and answered via email. That led to our recommendation to amend the New York law, and a single sentence added to the law in 2006 is changing the relationship between the public and the government. Very simply, when an agency has the ability to accept requests made via email, it must do so. More importantly, when you ask that records be made available via email and the agency can do so with reasonable effort, it is required to honor your request. 

 

That means that you can request records at 4 in the morning, that often you can get the equivalent of a thick report quickly and easily, and because the only fee that can be charged under FOIL involves the reproduction of records, it’s free. Even government agencies have come to favor the new email provisions. Nobody has to search through files to retrieve paper records, nobody has to stand at the photocopy machine, and nobody has to do the paperwork associated with charging a fee for photocopies. It’s a “win-win” situation.

 

The email provision has led to a development which is also clearly beneficial to the public and government agencies. When agencies conclude that certain records are clearly public and frequently requested, they post them on their Web sites. When they do, citizens don’t have to submit FOIL requests, and the agency doesn’t have to answer them - - the records are simply there for the taking. Another win-win.

 

This is all part of a trend, a trend recognized here and by President Obama. One day after taking office, the President issued a directive to federal agencies that stressed what has become known as “proactive disclosure.” That means that instead of waiting for requests, the government posts records of significance to the public on their Web sites.

 

We hear frequently of “transparency”, and the advances in information technology coupled with a law written in a way that has accommodated those advances have enabled New Yorkers to obtain government information more easily than ever. Certainly that trend is here to stay.