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FOIL-AO-13487

July 22, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.

Dear

I have received your letter concerning a request made under the Freedom of Information Law to the New York City Police Department, as well as the correspondence attached to it.

By way of background, in a letter dated June 12 that was sent via overnight mail, you requested "a copy of the video shot by the New York Police Department Video Production Unit of the flag raising ceremony at Ground Zero on September 11, 2001 (the 'Video')." It was specified in the request "that CNN is aware that the NYPD has already provided a copy of the Video to another media organization and thus, the NYPD has waived any possible exemptions under FOIL." Although you wrote that you "expect[ed] an acknowledgment of this request within five working days", the receipt of your request was not acknowledged until a letter dated June 27 was sent to you. In that communication, you were informed that the record in question "must be located in the files of this office and reviewed to assess the applicability, if any, of the particular exemptions from disclosure set forth in FOIL", and it was "estimate[d] that this review will [be] completed within 90 days of this letter." Because you had received no response, you appealed on June 28, also in a letter sent by overnight mail and prior to the receipt of the acknowledgment, on the ground that "CNN has not received a written response to this request within the required statutory response time, and as such, must consider the request denied." You emphasized that, following the transmission of your request, "repeated follow-up efforts" were made to gain a written response. After you received the acknowledgment dated June 27, you wrote on July 2 to "confirm CNN's intent to pursue [y]our previously-submitted appeal..."

You have sought an opinion concerning the facts described above, and in this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of that statute states in relevant part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."

Based on the foregoing, an agency must grant access to records, deny access or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date indicating when it can be anticipated that a request will be granted or denied.

I note that there is no precise time period within which an agency must grant or deny access to records. The time needed to do so may be dependent upon the volume of a request, the possibility that other requests have been made, the necessity to conduct legal research, the search and retrieval techniques used to locate the records and the like. In short, when an agency acknowledges the receipt of a request because more than five business days may be needed to grant or deny a request, so long as it provides an approximate date indicating when the request will be granted or denied, and that date is reasonable in view of the attendant circumstances, it has been advised that the agency would be acting in compliance with law.

In conjunction with the foregoing, every law in my opinion must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Therefore, if records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a lengthy delay in disclosure. As the Court of Appeals has asserted:

"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY2d 575, 579 (1980)].

I direct you to a recent judicial decision that also focused on a request made to the New York City Police Department that cited and confirmed the advice rendered by this office. In Linz v. The Police Department of the City of New York (Supreme Court, New York County, NYLJ, December 17, 2001), it was held that:

"In the absence of a specific statutory period, this Court concludes that respondents should be given a 'reasonable' period to comply with a FOIL request. The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL."

In the context of your request, a single record was sought, and that record, being well known not only to Americans, but to people throughout the world, should not, in my view, be difficult to locate or identify. That being so, I do not believe that a delay for as much as 90 days to "locate" and "review" the record in order to determine rights of access is reasonable or indicative of compliance with law.

If neither a response granting or denying a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, or if the acknowledgement of the receipt of a request fails to include an estimated date for granting or denying access, a request may, in my opinion, be considered to have been constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. In any of those circumstances, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law.

With respect to your request, again, it was sent by overnight mail on June 12, and its receipt was not acknowledged until June 27. Clearly, more than five business days had passed before the Department responded in any way. That being so, I believe that you had the right to appeal on the ground that the request had been constructively denied.

The provision dealing with the right to appeal, §89(4)(a), states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Second, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in a decision involving the Department in Gould v. New York City Police Department [89 NY2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

From my perspective, in consideration of the facts associated with your request, none of the grounds for denial could justifiably be asserted to withhold the Video. As you stressed in your appeal, "[t]his Video has been previously provided by the NYPD to HBO and aired within the HBO program 'In Memoriam.'" Because the Video was previously disclosed to another entity, and because it was seen by millions of people, I believe that you, or any member of the public, would have the right to obtain a copy. As you are likely aware, the Freedom of Information Law generally does not distinguish among applicants for records, and it was held soon after its enactment that a record accessible under that statute should be made "equally available to any person, without regard to status or interest" [see Burke v. Yudelson, 51 AD2d 673 (1976); also Farbman v. New York City, 62 NY2d 75 (1984)].

In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to Department officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Leo Callaghan
Michael O'Looney
Daniel Gonzalez