May 4, 1999
Mr. Harvey M. Elentuck
139-15 83 Avenue #326
Jamaica, NY 11435-1517.
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
Dear Mr. Elentuck:
I have received your correspondence of April 6. For reasons expressed on several
occasions in the past, I will not prepare a new opinion concerning access to observation
reports. However, I agree with your inference that the requirements relating to the right to
appeal a denial of access to records imposed by Community School District 3 are, in your
words, "more restrictive" than the law.
Cirino T. Lombard, Special Assistant to the Superintendent, wrote that "an applicant
denied access to records may file an appeal by delivering a copy of the original request, the
specific grounds for your appeal and the denial letter to the Chancellor..."
The requirements concerning the ability to appeal a denial of access to records are
found in the regulations promulgated by the Committee on Open Government (21 NYCRR
Part 1401), which govern the procedural aspects of the Freedom of Information Law and
have the force and effect of law. Specifically, §1401.7(e) of the regulations states that:
"The time for deciding an appeal by the individual or body
designated to hear appeals shall commence upon receipt of
written appeal identifying:
(1) the date and location of requests for records:
(2) the records that were denied; and
(3) the name and return address of the appellant."
In short, there is no obligation to include a copy of an original request when appealing, nor
is there a requirement that "specific grounds for your appeal" be expressed. While an
appellant may offer reasons in an effort to convince an appeals person or body to overturn an
initial denial of access, there is no requirement to do so.
I hope that I have been of assistance.
Robert J. Freeman
cc: Cirino T. Lombard