Let Me Teach You How To FOIL
A lesson on how to FOIL pretty much anything you want, and how to handle a rejection when it comes.
Hi.
My brain needs a break from Keen Equities and Clovewood today. Although I will share with you a photo I was sent this morning, pre-Earthquake.
This truck was seen leaving the Clovewood site early Friday morning. So, uh … Good thing those DEC stop work orders are being adhered to!
(And yes, I’ve reached out to the DEC for comment about this. There is also a discussion among local Blooming Grove residents concerning the purchase of a drone to monitor the project site, since clearly the DEC can’t be there every day. I’ll let you know how that discussion goes next week. I’m happy to chip in.)
So, while we wait on the DEC, let me direct your attention to the FOIL process. This is something everyone should know how to do, especially when it comes to dealing with the corrupt local governments we have in Southern Orange County. (Namely: The Town of Monroe and South Blooming Grove.)
There are a lot of good people out there working on your behalf to gather this information, but we’re human. We get tired. And this stuff is exhausting.
The more people that know how to do things like FOIL, the easier it is for us to share information with each other. And the harder it is for local and state government officials to hide their corrupt behavior.
First, let me direct you to the three resources I use when it comes to making a FOIL request.
The Reporters Committee For Freedom Of The Press’s The Open Government Guide.
How To Commence an Article 78 Proceeding ←Only use with the help of an attorney.
Everything you need to know can be found in those guides.
Today I’m just going to walk you through the basics of making a FOIL request.
Remember: These are the BASICS. You’ll want to consult with the ACLU’s Foil Toolkit for more specifics, and then the Open Government Guide if you want an exhaustive amount of information. I borrowed some of the language from the ACLU toolkit to create this post.
Step 1
You can foil basically anything if it’s done by a government employee or elected official acting in their official capacity, regardless of whether or not that action took place on a personal or professional (i.e. town issued) device.
In today’s example, we’re going to request emails, WhatsApp Messages, text messages, and other electronic communications sent from Confidential Assistant to the Mayor of South Blooming Grove, Joel Stern, to Yehuda Eckstein, publisher of the Yeshiva World News between the dates of January 1st, 2023 and January 1st, 2024, concerning Blaise Gomez and News 12. We’re also going to request messages sent from both Stern’s personal and professional devices.
It’s important when making a request to include a specific time frame, who was involved, what specifically they were talking about, and how they were doing it.
In this case, we see in the video that Joel Stern is clearly recording Blaise Gomez on a smartphone. But we don’t know if that’s his personal phone or government issued phone. So we’re going to request this information from both devices.
(For more on the lawsuit, Blaise Gomez v. Joel Stern, I did a story here.)
Step 2
If you live in South Blooming Grove, you can download their FOIL form, walk it into the office, and have the Village Clerk stamp it. If you live in the Town of Monroe, you have an online form you can fill out to submit your request.
It’s always better to submit these in person and get it stamped. But the second best option is to send an email to your local Village or Town Clerk if there is no online portal feature, like the Town of Monroe has.
If you send an email, that email MUST include
-The Date
-The name and address of the Records Access Officer (aka The Village or Town Clerk, in most cases)
-A Subject Line that says: “Re: FOIL Request - [Type of Record] from [Name of Agency]”.
-Then explain you’re requesting information under the New York State Freedom of Information Law, and then provide as many specifics as you can about your request.
So using our above example:
Subject: Re: FOIL REQUEST - Electronic Communications From Joel Stern to Yehuda Ekstein
Body:
Dear Kerry, (South Blooming Grove’s Village Clerk)
Under the Freedom of Information Law, I am requesting the following:
All electronic communications (Facebook Messages, WhatsApp Messages, Email Messages, Text messages, and other) sent between Joel Stern, Confidential Assistant to the Mayor, and Yehuda Ekstein, Editor of Yeshiva World News, on Mr. Stern’s personal and professional devices between the dates of January 1st, 2023 and January 1st, 2024 concerning News 12 Reporter, Blaise Gomez.
(I’ve put in Bold the specifics of the request.)
-One mistake I made early on was requesting too much information all at once. So send one email, or one paper / electronic submission, for EACH request. This makes life easier for both you and for the Records officer who will process your request.
-Next, and this is very important, make sure that you include in your email how you’d like to receive the information (referred to as “records.”) The easiest, and least expensive way to get this information is through email.
So your email should say:
Dear Kerry, (South Blooming Grove’s Village Clerk)
Under the Freedom of Information Law, I am requesting the following:
All electronic communications (Facebook Messages, WhatsApp Messages, Email Messages, Text messages, and other) sent between Joel Stern, Confidential Assistant to the Mayor, and Yehuda Ekstein, Editor of Yeshiva World News, on Mr. Stern’s personal and professional devices between the dates of January 1st, 2023 and January 1st, 2024 concerning News 12 Reporter, Blaise Gomez.
Consistent with section 85(5)(a) of FOIL, please provide these records via email.
-Sometimes, like if you’re requesting documents from The Before Times, it’s impossible to get that document electronically. So that’s when you’ll want to include language that says, “If all of the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and let me know the cost for reproducing the remainder of the records requested.”
(And by “Before Times”, I mean pre-2010, depending on when your local or state government official discovered the Internet and was told to keep records electronically.)
-Next, you’ll want to make sure the Clerk knows how to get in touch with you if they have questions. So you’ll want language that says, “If my request is too broad or does not reasonably describe the relevant records, please let me know via email and I will clarify my request.”
-Then, and this is really important when you have government officials who like to ignore FOIL requests, you’ll want to let them know there’s a time limit. Specifically, they have 5 days to acknowledge receipt of your FOIL and give you the information they requested.
Now, sometimes, it’ll take them longer than five days to get back to you. So you’ll want to explain that you’ll accommodate them … To a point.
That’s when you’ll say “If any records are unavailable within the five business days of receipt of the request, and responsive documents exist, please provide a description of such records and a timeline of when access to the records will be provided. If you determine that certain parts of this request may be more easily produced than others, I am amendable to discussing a production schedule for records that will take longer to produce.”
-Finally, and this will be important later, you’ll want them to explain why your request was denied, if they choose to deny it. “If you deny any or all of this request, please inform me of the reasons for the denial in writing and provide the appeal procedures as well as the name and address of the person or body to whom an appeal should be directed. If you determine that any portion of the requested records are exempt from disclosure pursuant to FOIL, please delete only the material claimed as exempt, inform me of the basis for the exemption claim, and furnish copies of those portions of the records that you determine are not exempt.”
So let’s look at the FOIL Request Email …
Subject Line: Re: FOIL REQUEST - Electronic Communications From Joel Stern to Yehuda Ekstein
Body:
April 5th, 2024
South Blooming Grove Village Hall
811 Route 208, Monroe NY 10950
Dear Kerry,
Under the New York State Freedom of Information Law, I am requesting the following records:
1. All electronic communications (Facebook Messages, WhatsApp Messages, Email Messages, Text messages, and other) sent between Joel Stern, Confidential Assistant to the Mayor, and Yehuda Ekstein, Editor of Yeshiva World News, on Mr. Stern’s personal and professional devices between the dates of January 1st, 2023 and January 1st, 2024 concerning News 12 Reporter, Blaise Gomez.
Consistent with section 85(5)(a) of FOIL, please provide these records via email. If all of the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and let me know the cost for reproducing the remainder of the records requested.
If my request is too broad or does not reasonably describe the relevant records, please let me know via email and I will clarify my request.
As a reminder, you have five business days from receipt of this email to acknowledge this request, and then to either grant it or deny it. If any records are unavailable within the five business days of receipt of the request, and responsive documents exist, please provide a description of such records and a timeline of when access to the records will be provided. If you determine that certain parts of this request may be more easily produced than others, I am amendable to discussing a production schedule for records that will take longer to produce.
If you deny any or all of this request, please inform me of the reasons for the denial in writing and provide the appeal procedures as well as the name and address of the person or body to whom an appeal should be directed. If you determine that any portion of the requested records are exempt from disclosure pursuant to FOIL, please delete only the material claimed as exempt, inform me of the basis for the exemption claim, and furnish copies of those portions of the records that you determine are not exempt.
I have included with this email the above FOIL request in .pdf format. Please write me back to confirm receipt of this email.
Thank you.
-B.J. Mendelson
(Put your contact info here including your email address and phone number.)
-Make sure you copy and paste your email into Google Docs (for example) and then save it as a .pdf. Then attach that .pdf to the email being sent so you have a copy for your records.
The above email should be enough of a template for you to copy, paste, and change whatever info you need.
What Happens When They Don’t Respond?
Step 3
If you don’t hear back after five business days, you can copy and paste this letter to send. The only major difference here is that you now need to loop in the executive or whomever runs the local government, in this example. So, in a follow-up email to South Blooming Grove, I now have to also send this email to Mayor Kalaj.
If you don’t trust Mayor Kalaj, and I don’t, you can also send a copy of this email to the NYS Committee on Open Government. As you’ll see, he is obligated to do the same.
Subject Line: Follow-up FOIL REQUEST - Electronic Communications From Joel Stern to Yehuda Ekstein
Body:
April 15th, 2024
South Blooming Grove Village Hall
811 Route 208, Monroe NY 10950
Dear Kerry and Mayor Kalaj,
I am following-up on a FOIL request I submitted to the Village of South Blooming Grove that was sent to your office on April 5th, 2024.
Agencies, such as the Village of South Blooming Grove, must reply within 5 days upon receipt of a request to either grant the request, deny the request in writing, or provide written acknowledgement of receipt of the request and a statement of the approximate date when such requests will be granted or denied under the NY Pub. Off. Law. § 89(3).
If an agency fails to acknowledge the written request for a record within five days or fails to give an approximate date which is reasonable under the circumstances as to when the agency's decision to grant or deny access to the record will be made, then this non-compliance shall constitute a denial under Public Officers Law § 89(4)
Therefore, consider this email a formal appeal being made to the chief executive of the governing body, Mayor Kalaj, under N.Y. Pub. Off. Law § 89(4)(a) to have the requested documents provided or for the request to be denied, or granted with an approximate date when such requests will be granted or denied under NY Pub. Off. Law. § 89(3).
Under the law, Mayor Kalaj, you are required to immediately forward a copy of this appeal and the ensuing determination thereon to the Committee on Open Government, N.Y. Pub. Off. Law § 89(4)(a).
You have ten business days from the receipt of this email to respond to this appeal. Failure to do so within the next ten days constitutes a denial of access which entitles me to bring an Article 78 Proceeding against you in New York State Supreme Court.
I have included with this email the above FOIL request in .pdf format. Please write me back to confirm receipt of this email.
-B.J. Mendelson
(Put your contact info here.)
Ok. What Happens When They Deny My Request?
If they send you material that’s blacked out or otherwise redacted, you can request that they explain why they did so, and they have to give you an answer according to the FOIL law.
They can’t just black stuff out with no explanation, which is something the Town of Monroe just did on one of my requests. More on that later.
But let’s say your request was denied. Some tweaks are needed now.
First, use the FOIL# you were provided with when you received your denial and place it in the subject line. You’ll see it in the correspondence sent to you from the Clerk.
You will still want to make sure to include whomever the Record Appeals Officer is. So you may need to ask the Clerk to identify who that individual is.
Now’s a good time to remind you to keep your correspondence with the Clerk or whomever the Records officer is electronically. You will need to reference it as part of your appeal.
If you HAVE chatted with the Clerk electronically about your request, it is helpful to put that all into one document to provide and include with this email as a .pdf as part of the appeals process.
Now let’s modify your email …
Subject Line: Appeal On FOIL XXXX-XXX-XXXX
Body:
April 15th, 2024
South Blooming Grove Village Hall
811 Route 208, Monroe NY 10950
Dear Kerry and Mayor Kalaj,
I am following-up on a FOIL request I submitted to the Village of South Blooming Grove that was sent to your office on April 5th, 2024.
I write to appeal under the Freedom of Information law (Article 6 of the Public Officers’ Law) the [Department’s] denial of my request dated [Date] for documents related to [brief summary of your request]. The [Department] [brief summary of the agency action that you are appealing, e.g., “denied my request in full”].
-Ok, so here you would say something like …
I write to appeal under the Freedom of Information law (Article 6 of the Public Officers’ Law) the Village of South Blooming Grove’s denial of my request dated April 5th, 2024 for documents related to Joel Stern’s communications with Yeshiva World News Editor, Yehuda Eckstein, concerning Blaise Gomez. The Village denied my request in full.
-Now you’ll want to explain the reason for your appeal as briefly as possible.
“Mrs. Gomez is a recognizable public figure. Mr. Stern, while on the premises of the South Blooming Grove Village Hall, identified himself to Mrs. Gomez as “Assistant Mayor” and spoke with Mrs. Gomez in his capacity as a representative of the Village government. Mr. Stern then took video of his conversation with Mrs. Gomez and provided it to Mr. Yehuda Ekstein in an effort to smear a journalist investigating Stern’s wrong doing while serving as a village employee. It is in the public’s interest to understand how their government officials treat reporters who are exercising their first amendment right while investigate corruption in their village’s government.”
-If you need help on your appeal, the New York State Committee on Open Government can help you out.
-And now, the big finish:
Your email should end with the following: I therefore appeal the [Agency’s] response and request that the department produce any responsive documents promptly. If you have any questions about this, you may contact me at [contact information].
Under the law, [Executive officer/head records officer], you are required to immediately forward a copy of this appeal and the ensuing determination thereon to the Committee on Open Government, N.Y. Pub. Off. Law § 89(4)(a).
You have ten business days from the receipt of this email to respond to this appeal. Failure to do so within the next ten days constitutes a denial of access which entitles me to bring an Article 78 Proceeding against you in New York State Supreme Court.
I have included with this email the above FOIL request in .pdf format. Please write me back to confirm receipt of this email.
So for our letter, it should read as follows:
I therefore appeal the South Blooming Grove Village government’s response and request that the department produce any responsive documents promptly. If you have any questions about this, you may contact me at BJMendelson@Duck.com
Under the law, Mayor Kalaj, you are required to immediately forward a copy of this appeal and the ensuing determination thereon to the Committee on Open Government, N.Y. Pub. Off. Law § 89(4)(a).
Here’s The Final Letter To Send For Your Appeal
Subject Line: Follow-up FOIL REQUEST #XXX-XXX-XXX
Body:
April 15th, 2024
South Blooming Grove Village Hall
811 Route 208, Monroe NY 10950
Dear Kerry and Mayor Kalaj,
I am following-up on a FOIL request I submitted to the Village of South Blooming Grove that was sent to your office on April 5th, 2024.
I write to appeal under the Freedom of Information law (Article 6 of the Public Officers’ Law) the Village of South Blooming Grove’s denial of my request dated April 5th, 2024 for documents related to Joel Stern’s communications with Yeshiva World News Editor, Yehuda Eckstein, concerning Blaise Gomez. The Village denied my request in full.
Mrs. Gomez is a recognizable public figure. Mr. Stern, while on the premises of the South Blooming Grove Village Hall, identified himself to Mrs. Gomez as “Assistant Mayor” and spoke with Mrs. Gomez in his capacity as a representative of the Village government. Mr. Stern then took video of his conversation with Mrs. Gomez and provided it to Mr. Yehuda Ekstein in an effort to smear a journalist investigating Stern’s wrong doing while serving as a village employee.
It is in the public’s interest to understand how their government officials treat reporters who are exercising their first amendment right while investigate corruption in their village’s government.
I therefore appeal the South Blooming Grove Village government’s response and request that the department produce any responsive documents promptly. If you have any questions about this, you may contact me at BJMendelson@Duck.com
Under the law, Mayor Kalaj, you are required to immediately forward a copy of this appeal and the ensuing determination thereon to the Committee on Open Government, N.Y. Pub. Off. Law § 89(4)(a).
-B.J. Mendelson
(Put your contact info here.)
If your request is again denied, that is when you should seek out an attorney to help you file an Article 78 lawsuit. There’s more details here on how that works, but it’s expensive and time consuming, so it’s best left to legal professionals to assist you.
Happy FOIL-ing everyone. The more of us who know how to do it, the better.