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Compliance with Freedom of Information Law Requirements Thomas P. DiNapoli OFFICE OF THE COMPTROLLER NEW YORK STATE COMPTROLLER DIVISION OF STATE GOVERNMENT ACCOUNTABILITY Audit Objective............................... 2 Audit Results – Summary.............. 2 METROPOLITAN Background..................................... 2 TRANSPORTATION Audit Findings and Recommendations....................... 3 AUTHORITY - NEW YORK Internal Policies and Procedures....... 3 CITY TRANSIT Compliance with FOIL-Specified Time Frames ................................. 3 Denial of FOIL Requests.................. 5 Recommendations............................. 6 COMPLIANCE WITH Audit Scope and Methodology....... 6 FREEDOM OF INFORMATION Authority......................................... 7 LAW REQUIREMENTS Reporting Requirements................ 7 Contributors to the Report ............ 7 Exhibit A ......................................... 8 Report 2006-S-109 Appendix A - Auditee Response.... 9 Appendix B - State Comptroller's Comments...................................... 16 AUDIT OBJECTIVE must then explain in writing the reason for further denial or provide access to the records Our objective was to determine whether the sought within ten business days of the receipt Metropolitan Transportation Authority of the appeal. The MTA handles all FOIL (MTA) - New York City Transit’s (NYC request appeals on behalf of its constituent Transit) efforts to manage and monitor agencies, including NYC Transit. The MTA Freedom of Information Law (FOIL) requests received 29 appeals during our audit period result in the timely release of information for its various constituent agencies, 7 of consistent with FOIL requirements. which were related to NYC Transit. The average time MTA took to make a decision AUDIT RESULTS - SUMMARY regarding the 29 appeals was 22 business days, or 12 days beyond the FOIL When NYC Transit receives a written request requirement. In fact, 22 of the appeals for records from the public under FOIL, it has exceeded FOIL’s 10-day requirement, ranging five business days to grant or deny access, or from 11 to 66 days late. if more time is needed, to acknowledge the receipt of the request in writing. The Our report contains eight recommendations to acknowledgement letter must include the help correct the problems identified during approximate date when such request will be our audit. MTA officials disagreed with the granted or denied. If NYC Transit determines way we judged timeliness in certain cases, but to grant a request in whole or in part, and if generally agreed with our recommendations circumstances prevent disclosure within 20 and agreed to take steps to implement them. additional business days, NYC Transit must provide an explanation and a date certain This report, dated October 10, 2007, is within which it will grant the request in whole available on our website at or in part. http://www.osc.state.ny.us. Add or update your mailing list address by contacting us at: We found NYC Transit was significantly late (518) 474-3271 or in responding to FOIL requests. For 85 of the Office of the State Comptroller 168 (50 percent) requests we reviewed, NYC Division of State Government Accountability Transit’s determination took longer than 110 State Street, 11th Floor promised. Seventy-nine determinations were Albany, NY 12236 significantly late (i.e., more than ten days late). At the time of our review, NYC Transit BACKGROUND had provided a response to 35 of the 85 requests. On average, these 35 responses took The Metropolitan Transportation Authority 33 days beyond the initially-specified time (MTA) is a public benefit corporation frames. The remaining 50 requests, which providing transportation services in and were still open at the time of our field visit, around the New York City metropolitan area. were each already late by more than ten days. The MTA consists of various constituent Overall, NYC Transit had already taken, on agencies, each providing different average, 136 days to respond to these 50 open transportation services. One of these requests. constituent agencies, New York City Transit (NYC Transit), is the principal transit Any person denied access to records may, operator in New York City, providing rail and within 30 days, appeal in writing. An agency bus service on a 24-hour basis throughout all Report 2006-S-109 Page 2 of 16 five boroughs of the City. Ridership on NYC requests for six months after resolution of a Transit is approximately seven million daily - request. more than two billion annually. AUDIT FINDINGS AND RECOMMENDATIONS Article 6 of the New York State Public Officers Law provides for public access to Internal Policies and Procedures government records. The statute, generally referred to as the Freedom of Information Under FOIL, agencies are required to make Law (FOIL), applies to any State agency, all eligible records available for public public authority and local government entity, inspection or copying and promulgate rules with the exception of the Judiciary and the and regulations, including: the times and State Legislature. Under FOIL, each agency, places such records are available; the persons including public authorities, is required to from whom such records may be obtained; make all eligible records available for public and the fees for copies of records, which inspection or copying. Such records include, generally may not exceed 25 cents per page. but are not limited to, reports, statements, NYC Transit officials provided us with their opinions, folders, files, microfilms, and internal policies and procedures related to computer tapes or discs. FOIL. Our review found that these policies and procedures were equivalent to FOIL’s NYC Transit currently receives requirements. approximately 800 FOIL requests each year. FOIL specifies a timetable on how requests In addition, FOIL requires that agencies are to be processed, and how an agency maintain a subject matter list of all records in should respond when granting or denying the possession of the agency, whether or not access to requested records. However, they are available under FOIL. This list is to agencies may develop their own more be provided to the public upon request. We stringent internal policies and procedures for determined that NYC Transit maintains an processing FOIL requests. If a denied request appropriate subject matter list. is appealed, the agency must send copies of the appeal and subsequent determination to Compliance with FOIL-Specified Time the Committee on Open Government Frames (COOG). Among other things, COOG issues advisory opinions, and makes FOIL specifies time frames for the processing recommendations to the Legislature on of requests received by agencies. Agency matters relating to FOIL. Each agency is also compliance is important because delays in required to maintain a reasonably detailed responding to FOIL requests equate to a current list, by subject matter (subject matter denial of the FOIL request and could result in list) of all records in the agency’s possession, unnecessary appeal proceedings for the whether or not available under FOIL. agency. The New York State Archives and Records FOIL requires an agency to grant, deny or Administration (SARA) specifies acknowledge in writing, within five business requirements for FOIL record retention. days, the receipt of a written request for a Generally, an agency should maintain all record. We reviewed NYC Transit’s correspondence documenting its FOIL compliance with this five-day requirement. Report 2006-S-109 Page 3 of 16 The number of business days between receipt of the 65 responses that we considered late and NYC Transit’s initial action on each were based on the date of the request letter, FOIL request was calculated using NYC and only two of these would be considered Transit’s date received stamp through the date timely if another five days were allowed. of the initial correspondence with the requester; in most cases, an acknowledgment FOIL also specifies an acknowledgment letter letter. When no date received stamp was on must indicate an estimated date when a the request, we used the date of the FOIL determination on the accessibility to the request to begin our calculation. requested records will be provided. If, based on the nature of the request, NYC Transit NYC Transit received 410 FOIL requests officials know that it will take longer than 20 from January 1, 2006 through August 31, additional business days to make a 2006. We reviewed 176 (43 percent) of those determination, FOIL requires that they requests to determine if NYC Transit explain so in the acknowledgment letter and responded to those timely, in accordance with provide a reasonable determination date. FOIL. We found for 65 of the 176 requests NYC Transit included a response date in the (37 percent), NYC Transit’s initial action acknowledgment letters for 168 of the 176 exceeded the five business day requirement requests in our sample. The remaining eight and took, on average, ten business days. requests were appropriately referred to other MTA constituent agencies, or to other State In responding to our audit, NYC Transit agencies, and therefore were not included in officials stated that some acknowledgments our analysis. were delayed because the requester failed to appropriately address and/or identify the We found that NYC Transit’s determination nature of the letter. We noted some date- for 85 of the 168 requests took longer than received stamps were from the Legal promised. Seventy-nine of them were Department, while most others were from the significantly late (i.e., by more than ten days). FOIL Office. NYC Transit officials maintain At the time of our review, NYC Transit had that the appropriate date for beginning the provided a response to 35 of the 85 requests. calculation of the five-day acknowledgment On average, these 35 responses took 33 period is the date of receipt by the FOIL business days beyond the initially-specified Office, rather than the date received by NYC time frames. The remaining 50 requests, Transit. However, according to COOG’s which were still open at the time of our field interpretation of this FOIL requirement, the visit, were each already late by more than ten beginning of the calculation of the five-day business days.
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