New York’s Freedom of Information Law (“FOIL”) mandates that agencies make all “records” available for public inspection and copying, subject to certain  exemptions. See, Public Officers Law.   The presumption under FOIL is that the public has a right to access “records” maintained by an any agency, because “the Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy” See, Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, [2005].

With an eye towards this public policy, the Second Department, in Fanizzi v. Planning Bd. of Patterson, 146 AD 3d 98 [2d Dept 2016], recently held that even an informal submission only temporarily possessed by an agency and later withdrawn by the applicant is subject to FOIL, if the records were sought during the time when they were kept by that agency.

In Fanizzi, the developer left draft architectural renderings in the possession of a town planner for a little over a week.  The planner discussed the renderings at the meeting of the Planning Board that took place a week later.  During that time, a civic leader who had been monitoring the proposed development, attempted to review this material, but was denied by the Town, because the developer had not formally submitted the renderings.  Not surprisingly, the civic leader commenced an Article 78 to compel the release of these draft plans.

In granting the Town and developer’s motions to dismiss, the lower court reasoned that architectural renderings informally submitted by the developer were not agency “records” within the public’s purview of FOIL.  Reversing the lower court, the  Appellate Division found these renderings were in fact kept and held by an agency and therefore, “records” subject to review pursuant to FOIL.  The court held that the definition of “record” is not limited by the purpose for which a document was originated or the function to which it relates.  The fact that the developer did not formally submit the renderings as part of an application for approval of an amended site plan was irrelevant.  As the court stated: “to hold otherwise would allow agencies to frustrate the purpose of FOIL by discarding records when they receive FOIL requests.”

Practice  Tip Commentary:  Once an applicant’s documents are submitted to an agency, even drafts, they are immediately subject to public scrutiny under FOIL.

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