Are emails considered agency records under FOIL?

• A. No; emails are never considered agency records.
• B. Only emails created after 2010 are subject to FOIL.
• C. Yes; emails are agency records if in the agency's possession.
• D. Only emails containing sensitive information are records.

Answer: (C)

Emails are agency records when the agency has possession or control of them. Under FOIL, a record includes writings in any form that an agency creates or receives in the course of official business, and the format isn’t what matters—the agency’s possession does. So if an email is stored on the agency’s servers or retained by the agency, it falls under FOIL and must be disclosed unless a specific exemption applies. If the email only exists on a private device and the agency has no possession or retrieve capability, it isn’t a FOIL record. In short, the key test is possession: emails become agency records if the agency possesses them.