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August 2, 2000

FOIL-AO-12259

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

I have received your letter and apologize for the delay in response. You indicated that
you requested records from the Office of the New York County District Attorney in May of
1999 and that "[e]very month since then [you] have received request[s] for four weeks
extensions." You have questioned the validity of those extensions.

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 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 the context of your correspondence, it appears that approximate dates have been
given, but that the agency has repeatedly gone beyond those dates.

In a case that described an experience 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 estopped 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 to Mr. Gary J. Galperin 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.

I note, too, that 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)].

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Gary J. Galperin