Q: I recently discovered that it is a common practice among many agencies to publish videos on YouTube and to set their privacy to “Unlisted.”
Unlisted videos do not show up in searches and do not show up in the YouTube account-holder’s public video list, but they are accessible to anyone who has the video’s URL.
I want to be able to view all unlisted videos that a particular agency has posted, however I am not sure how to request that in a way which will get me what I want. Specifically, if I ask for a list of URLs for videos that the agency has posted to YouTube as “unlisted” it may be a reasonable response that such a list does not exist anywhere, aka “No responsive records.” I know that I could request a copy of all of those videos, however the potential fees associated with that request may be substantial when compared to [a properly worded request for] what likely amounts to a page or two of URLs.
A: It is not clear whether you are seeking information from a federal or state agency, so I am providing information on both on the federal Freedom of Information Act (“FOIA”) and New York’s Freedom of Information Law (“FOIL”).
The FOIA, 5 U.S.C. § 552, is a federal open records act that provides a mechanism to gain access to public records. The FOIA requires that a government agency produce existing records that are not otherwise exempt. 5 U.S.C. § 552(a)(2). Under FOIA, there are nine categories of documents that are exempt from disclosure. 5 U.S.C. § 552(b). By statute, the agency is required to grant or deny a FOIA request within 20 working days, except “in unusual circumstances,” in which case the agency can extend the deadline by notifying the requestor. 5 U.S.C. § 552(a)(6). If an agency denies an individual’s FOIA request, it must state the reason for the denial, including identifying and statinghow claimed exemptions apply to the records requested, and give the individual an opportunity to appeal the decision. 5 U.S.C. § 552(a)(6).
On the state side, each state has its own open records law, which requires that a state agency produce existing records that are not otherwise exempt. A state’s open records law will generally include provisions concerning the timeframe within which an agency needs to make an initial response, along with provisions concerning the specific exemptions that can be claimed to prevent disclosure. A state’s open records law will also generally include mechanisms for enforcement, such as filing an appeal with the agency and then filing suit.
FOIA does not require an agency to create new records or conduct research, and it is likely that New York’s FOIL is the same. When wording your request, you might want to
try asking for all documents or records related to videos posted on YouTube, both listed and unlisted, by the agency. In addition, you can include a request for the actual videos and ask the agency to let you know if the fees will be more than a certain amount,
perhaps also noting that a list of URL’s would be acceptable in lieu of the actual videos. Agencies sometimes choose to create records with responsive information if providing copies of the underlying records would be more laborious for them.
The Department of Justice has put together a Guide to the Freedom of Information Act that you might find helpful if you are seeking the information/documents from a federal agency. The particular agency should also have FOIA information available on its website. For information regarding New York’s FOIL, you might find the New York Committee on Open Government’s website helpful. In addition to providing general information regarding FOIL requests, there are also some advisory opinions that you might find useful.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.