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December 3, 1999

FOIL-AO-11839A

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

As you are aware, I have received your recent letter in which you sought assistance in
relation to unanswered requests for records maintained by Westchester County.

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..."

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 [see DeCorse v. City of Buffalo, 239 AD2d 949, 950
(1997)]. 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 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)].

For your information, I believe that the Westchester County Attorney has been
designated to determine appeals.

Lastly, from my perspective, 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 NY 2d
575, 579 (1980)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Hon. Andrew Spano