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September 9, 1999

Mr. John Lindsay
Transportation Alternatives
115 West 30th Street, Suite 1207
New York, NY 1001-4010

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 Mr. Lindsay:

I have received your letter of August 5. You indicated that you sent requests to the
New York City Department of Transportation on July 14 and July 27, but that as of the date
of your letter to this office, you had neither been granted access to the records sought nor
informed of the approximate date when the request would be granted. You wrote that "[t]his
has been a long standing problem at NYCDOT" and asked that I inform that agency that is
" not in compliance with law."

In this regard, §89(3) of the Freedom of Information Law provides 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..."

It has been held that agency officials "did not conform to the mandates" of the
provision quoted above "when they did not...furnish a written acknowledgement of the receipt
of...requests along with a statement of the approximate date when action would be taken"
[Newton v. Police Department, 585 NYS2d 5, 8, 183 AD2d 621 (1992), emphasis added].

In a case that described an experience that may be similar to yours, the court cited
§89(3) of the Freedom of Information Law and wrote that:

"The acknowledgement letters in this proceeding neither
granted nor denied petitioner's request nor approximated a
determination date. Rather, the letters were open ended as to
time as they stated, ‘that a period of time would be required
to ascertain whether such documents do exist, and if they did,
whether they qualify for inspection.

"This court finds that respondent's actions and/or inactions
placed petitioner in a "Catch 22" position. The petitioner,
relying on the respondent's representation, anticipated a
determination to her request...this court finds that this
petitioner should not be penalized for respondent's failure to
comply with Public Officers Law §89 (3), especially when
petitioner was advised by respondent that a decision
concerning her application would be forthcoming.

It should also be noted that petitioner did not sit idle during
this period but rather made numerous efforts to obtain a
decision from respondent including the submission of a follow
up letter to the Records Access Officer and submission of
various requests for said records with the Department of
Transportation" (Bernstein v. City of New York, Supreme
Court, Supreme Court, New York County, November 7,
1990).

In Bernstein, the court determined that the agency "is stopped from asserting that this
proceeding is improper due to petitioner's failure to appeal the denial of access to records
within 30 days to the agency head, as provided in Public Officers Law, §89(4)(a)."

Based on the foregoing, I believe that your requests have been constructively denied
and that you may appeal the denials pursuant to §89(4)(a). 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 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
reason for further denial, or provide access to the record
sought."

Alternatively, based on the holding in Bernstein, it appears that you could seek judicial review
of the denials now. I suggest, however, that you appeal in an effort to avoid the time and cost
of litigation.

Lastly, in my view, every law 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)].

In a case in which it was found that an agency's "actions demonstrate an utter disregard for
compliance set by FOIL", it was held that "[t]he records finally produced were not so
voluminous as to justify any extension of time, much less an extension beyond that allowed
by statute, or no response to appeals at all" (Inner City Press/Community on the Move, Inc.
v. New York City Department of Housing Preservation and Development, Supreme Court,
New York County, November 9, 1993).

In an effort to enhance compliance with and understanding of the Freedom of
Information Law, a copy of this response will be forwarded to the Department's records
access officer.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:tt

cc: Records Access Officer