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January 13, 1999

Ms. Estelle Levy
150 West 96th Street -14G
New York, NY 10025

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. Levy:

I have received your letter of December 19 in which you raised questions concerning
the Freedom of Information Law.

You asked initially whether there is "a Step III and Step IV Appeal." In this regard,
The Freedom of Information Law provides what might be characterized as a "one step"
appeal process. Moreover, it has been held that an agency's addition of another "step" is
inconsistent with law.

When an agency denies access to records, the applicant has the right to appeal
pursuant to º89(4)(a) of the Freedom of Information Law, which 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 of the entity, or the person therefor designated
by such 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."

Further, the regulations promulgated by the Committee on Open Government (21
NYCRR Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head,
chief executive or governing body of other agencies shall hear
appeals or shall designate a person or body to hear appeals
regarding denial of access to records under the Freedom of
Information Law.

(b) Denial of access shall be in writing stating the reason
therefor and advising the person denied access of his or her
right to appeal to the person or body established to hear
appeals, and that person or body shall be identified by name,
title, business address and business telephone number. The
records access officer shall not be the appeals officer" (section
1401.7).

It is also noted that the state's highest court has held that a failure to inform a person
denied access to records of the right to appeal enables that person to seek judicial review of
a denial. Citing the Committee's regulations and the Freedom of Information Law, the Court
of Appeals in Barrett v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner
of the availability of an administrative appeal in the office (see,
21 NYCRR 1401.7[b]) and failed to demonstrate in the
proceeding that the procedures for such an appeal had, in fact,
even been established (see, Public Officers Law [section]
87[1][b], he cannot be heard to complain that petitioner failed
to exhaust his administrative remedies" [74 NY 2d 907, 909
(1989)].

Perhaps most pertinent to the question is a decision in which an agency's "two-tiered"
appeal procedure included within a local law was found to be invalid. As stated by the court:

"Given the scope, history and legislative declaration of FOIL,
it is apparent that the Legislature has evidenced its intent to
preempt the field of regulation. Additionally, the æprerequisite
æadditional restrictions' on rights under State law (F.T.B.
Realty Corp. v. Goodman, 300 NY 140,147-148) which Local
Law No. 8-1978 imposes, namely, a two-tiered appeals
procedure before Article 78 CPLR review can be had, would
be sufficient to invalidate the local law (See Con Ed v. Town
of Red Hook, 60 NY2d 99), as being inconsistent with the
state law's single tier appeals procedure. Accordingly,
respondents' reliance upon the local law in support of their
argument that petitioners have failed to exhaust their
administrative remedies is misplaced" (Reese v. Mahoney,
Supreme Court, Erie County, June 28, 1984).

If an appeal is denied, or if an agency fails to determine the appeal within ten business
days as required by law, the applicant would have exhausted his or her administrative
remedies. At that point, the applicant could seek judicial review of the denial by initiating a
proceeding under Article 78 of the Civil Practice Law and Rules. In such a proceeding, the
issue is whether a government agency or official acted unreasonably, i.e. was arbitrary and
capricious, or failed to perform a duty required to be performed by law. An Article 78
proceeding is initiated in Supreme Court in the county in which the agency's determination
was made. While a person may initiate such an action pro se, in my experience, that is
relatively rare.

With respect to the role of the Committee on Open Government, as a matter of policy
and fairness, the Committee does not prepare formal written opinions or otherwise participate
in any official manner following the commencement of litigation. Prior to the initiation of
litigation, the Committee prepares advisory opinions at the request any person or agency.
Opinions are frequently used in judicial proceedings as exhibits, and many judicial decisions
have cited opinions rendered by the Committee.

I hope that I have been of assistance. Should any further questions arise, please feel
free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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