On Board Online • September 1, 2025
By Shubh N. McTague
Staff Counsel
New York's Freedom of Information Law (FOIL) requires governmental bodies and agencies, including school districts, to allow members of the public access to official documents and records unless a legal exemption(s) applies.
The state has a designated expert body on FOIL called the Committee on Open Government (COOG). Housed within the New York Department of State, it provides guidance and written advisory opinions when anyone has a question regarding FOIL or the state Open Meetings Law (another law that affects school boards).
Recently, COOG responded to an inquiry by two families relating to several FOIL requests that were made to a school district on Long Island. COOG found that the district committed various errors, including not being timely in its responses.
Understanding the law and some of the errors committed could help prevent districts from making the same mistakes. If a judge determines that a school district has violated FOIL, districts may be required to pay the attorneys' fees of the litigants.
While this article addresses some of the errors committed by the district, the 16-page COOG opinion (available at on.ny.gov/3Jm1O5Y ) provides a fuller view of different aspects of FOIL. To minimize the chances of mistakes in responding to FOIL requests, NYSSBA recommends that the full decision be reviewed by all record access officers and the appeals officers working in school districts and BOCES.
Timeframes in responding to FOIL requests
Initial requests
Pursuant to the Public Officers Law, a written response to a FOIL request is required within five business days. The school district must do one of the following: (a) grant access; (b) deny access and give a reason for the denial; (c) state that the district does not possess the record or that it can't be located after a diligent search; or (d) acknowledge that the request was received and give an approximate date (which must be reasonable) when it will be granted or denied.
Once the district acknowledges the request, it has 20 business days to search for the records, grant or deny access, and prepare them. If more than 20 business days are needed, it has to notify the requestor but must provide a "date certain" when a response will be provided and the reasons why it can't fulfill the request within the 20 business days.
In dealing with all these timeframes, business days do not include weekends or legal holidays but can include days when a district is on break (if there is a legal holiday on the break, that would not count).
In the situation addressed by COOG, the individuals submitted two of four FOIL requests on the morning of Friday, Jan. 17, 2025, but the district did not acknowledge receipt until Monday, Jan. 27, 2025. COOG stated that because the request was received during business hours on Jan. 17, that day was the first business day. Therefore, the fifth business day was Thursday, Jan. 23. Instead of responding within those five business days, the district replied on the seventh business day. COOG found this late response to be inconsistent with the law.
Furthermore, the district's acknowledgement of receipt of the FOIL request dated Jan. 27 stated it would provide or deny access within 20 business days or provide a date certain and reason for the delay. However, the district again failed to respond within the statutory timeframe. While the 20th business day fell on Feb. 26, the district did not reply until March 3. Moreover, that reply stated that the district required another 20 business days but did not provide a date certain nor the reasons for the delay. An identical response was sent on March 31. COOG stated that these responses were all inconsistent with the requirements of the law, not only for being late but for also failing to specify the information required.
Appeals
If a school district denies a FOIL request, the requestor can file a written appeal with the district's designated appeals officer within 30 days. Appeals can also be filed if there is no response in the statutory timeframes or if the requestor believes the timeframe beyond the 20 days is unreasonable.
The appeals officer then has 10 business days to respond, in writing. The reply must either disclose the rationale for further denial or grant access to the record sought.
If there is no timely response or the appeal is denied, the requestor can file an action in state court within four months from the date of the agency's final decision.
In this instance, a single appeal was filed to the appeals officer incorporating all denials of the FOIL requests on April 25, 2025. However, the appeals officer did not respond until May 14, 2025, which was 13 business days after the appeal was filed. Because the response was more than 10 business days, COOG found this to be inconsistent with the requirements of FOIL.
What if a district does not possess a record or it cannot be found after a diligent search?
The Public Officers Law provides that one lawful way to deny a FOIL request is for the district to "certify that it does not have possession of such record or that such record cannot be found after diligent search."
The district should be specific about its reasons for being unable to provide requested documents, especially if it possesses some documents but not others. "When an agency has some records that are responsive to a request and lacks others, it must make it clear which records have been withheld [based on an articulated exemption] and which ones it does not possess," COOG said. If any records are possessed but are being withheld, the individual making the request is eligible to appeal that decision. On the other hand, if the district makes the determination that it does not possess the records, that does not constitute a denial of access under FOIL and is not eligible to be appealed.
Here, the district's response to the FOIL appeals was, in part: "I hereby certify that any record that the [district] identified in its FOIL request responses dated April 7, 2025 as not being maintained by the district, are either not maintained by the district or unable to be located after a diligent search." COOG stated that this certification was inconsistent with the requirements of the statute because it failed to specify which records were being denied versus which could not be located. COOG stated that this certification was inconsistent with the requirements of the statute because it failed to specify which records were being denied versus which could not be located.
Other takeaways from COOG's letter
In addition to the issues discussed above, COOG noted:
- Even if documents are posted on the district's website, there is still an obligation to provide direct access when requested, such as providing copies, a pdf or direct weblink depending on how the person requests access. For example, although a district is required to post its Dignity for All Students (DASA) policy on its website, an individual may request a copy of it under FOIL, triggering all requirements of the law.
- What if a district receives a request for disciplinary records under section 3020-a of the Education Law, after proceedings have concluded and charges were dismissed? Such records should be withheld from disclosure pursuant to the unwarranted invasion of personal privacy exemption under FOIL. , , avoiding identification of a student).
- The records access officer may not be the same person as the appeals officer. Accordingly, the appeals officer should be excluded from processing the response to an initial request for records under FOIL.
The COOG letter provides detailed explanations of various statutory requirements under FOIL and can be a valuable reference for school district records access officers and appeals officers to ensure they are in compliance with the law.