Objectives

To determine if the Department of Transportation (DOT) has policies, procedures, and processes in place to fulfill its responsibilities under the Freedom of Information Law (FOIL), and if DOT is in compliance with its responsibilities under FOIL. The audit covered FOIL requests received by DOT for the period January 2018 through July 2021 and FOIL appeals received by DOT for the period January 2018 through September 2021.

About the Program

DOT’s mission is to ensure its customers – those who live, work, and travel in New York – have a safe, efficient, balanced, and environmentally sound transportation system. It has a main office located in Albany and 11 regional offices throughout the State. Article 6 of the New York State Public Officers Law provides for public access to government records. The statute, generally referred to as FOIL, applies to any State agency, public authority, and local government entity, with the exception of the Judiciary and State Legislature. Under FOIL, DOT is required to make all eligible records available for public inspection or copying. Within 5 business days of receiving a FOIL request, DOT must make the requested records available, deny the request in writing, or furnish a written acknowledgment of the request that states the approximate date when such request will be granted or denied. Additionally, within 10 business days of receipt of an appeal, DOT must grant access to the records sought or fully explain the reasons for further denial in writing.

Key Findings

• DOT did not respond within the statutory time frame for 34 of the 194 sampled FOIL requests. This included 19 FOIL requests where DOT did not grant, deny, or acknowledge receipt of the request within 5 business days. For another FOIL request, DOT could not show it provided the requested information.
• DOT was not in compliance with the statutory requirement to provide an appeal to Committee on Open Government (COOG) upon receipt for any of the 49 appeals we sampled. DOT officials stated that it is their practice to send the appeal to COOG when the determination is made.
• DOT’s regional offices did not always follow the FOIL procedures for handling FOIL requests. We found three regional offices typically did not use the DOT acknowledgment template letter. Instead, they used informal emails which did not provide the requestor with a reference number.

Furthermore, the audit was obstructed by, among other things, requiring that all meetings be attended by legal and non-legal supervisory staff from the main office and not providing all requested information.¹ For example, while one DOT regional office on its own provided its FOIL procedures manual, three other regions would not. The main office did not provide the listing of FOIL request topics deemed sensitive that the regional offices were required to forward to the main office for review, as they claimed they were protected by attorney–client privilege. We therefore cannot state with reasonable certainty that all information necessary to meet our audit objectives was provided.

Key Recommendations

• Acknowledge and respond to FOIL requests and appeals within the time frames required by law. Grant or deny access to FOIL requests within 5 business days, or if more time is needed, acknowledge receipt of the request in writing, indicating both the reason for the inability to grant the request within 20 business days and the approximate date when the request will be granted or denied.
• Forward all appeals to COOG upon receipt, as required by FOIL.
• Provide formal training for main office and regional office employees involved in processing FOIL requests.

1 Auditors are required by generally accepted government auditing standards to disclose in their report any circumstances that impact the reliability of the evidence they are relying on, whether the obstruction is deliberate by an auditee or due to other circumstances.