January 30, 1998
Ms. Linda A. Mangano
38 Ellis Place
Ossining, NY 10562
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.
Dear Ms. Mangano:
I have received your letter of January 7, as well as the materials
attached to it. You have sought my views relating to two issues pertaining to
your requests made under the Freedom of Information Law to the Village of
The first concerns what you characterized as a "boiler plate reply" to
requests in which it is stated that: "As soon as it is available, I will be in touch
with you." In this regard, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to requests.
Specifically, §89(3) of the Freedom of Information Law states in 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. The acknowledgement to which you referred does not
make reference to such a date.
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, I believe that
the agency would be acting in compliance with law.
If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an agency delays
responding for an unreasonable time after it acknowledges that a request has
been received, a request may, in my opinion, be considered to have been
constructively denied. In such a circumstance, I believe that the denial may
be appealed in accordance with §89(4)(a) of the Freedom of Information Law.
That provision 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
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
The second issue pertains to a denial of your request for "all
Applications for overnight parking permits that were refused by the Village."
You added that your interest is in knowing the reasons the Building
Department's rejections of applications for overnight permits.
As you are aware, 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. Relevant under the circumstances in my view is §87(2)(b), which
authorizes an agency to withhold records to the extent that disclosure would
constitute "an unwarranted invasion of personal privacy."
In my view, pursuant to the provision quoted above, the Village has
the authority to withhold any portion of the records in question which, if
disclosed, could identify an applicant. There are many instances in which the
identities of applicants may be withheld, often until an application, license or
permit is granted. For example, when individuals apply for public
employment, the law specifies that neither their names nor their home
addresses must be disclosed [see §89(7)]; if, however, an individual is hired
and is on the public payroll, that person's identity becomes public. If a person
has applied to take a licensing examination, the name may in my view be
withheld, for later, the names of those who become licensed are public, and
comparing the names of those who applied with those granted licenses would
indicate who failed the exams. For that reason, I believe that the names of
applicants may be withheld.
Further, based on a review of the form used by the Village, an
applicant for a "Hardship - Parking Exemption" must include a variety of
personal information, such as a telephone number, an indication that he or she
may be physically handicapped, or that he or she is involved in work that
merits the grant of an exemption. In my opinion, those kinds of personal
details would in many instances result in an unwarranted invasion of privacy
In short, for the reasons expressed above, I believe that the identities
of applicants for the exemption, particularly those whose applications have
been rejected, may be withheld.
If you are interested only in the portion of the application indicating
the reasons for rejections of applications by the Building Department, I believe
that that aspect of the application would be available. Further, rather than
deleting identifying details from the application, it would appear that the back
side of the application, which includes the reasons for rejection by the
Building Department, would not include personally identifiable information
regarding applicants. If that is so, seeking copies of those pages of the
application would enable you gain access to the information sought.
Lastly, in conjunction with your other correspondence, which will be
answered within approximately three to four weeks, enclosed is a copy of the
Open Meetings Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Marie A. Fuesy