November 30, 2004
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.
I have received your letter in which you raised three questions that were overlooked in my earlier response to you.
In this regard, first, the State Education Department sent a copy of your appeal to this office. It was received on April 15. Second, we were unable to locate any appeal that you directed to the Executive Chamber. And third, you asked whether a person has the right "to request the same information on more than one occasion." From my perspective, if a request has been made and denied, and if an applicant’s appeal has also been denied, I do not believe that an agency would be obliged to respond to a second request for the same records if circumstances have not changed.
In a recent decision involving a similar question, the court found that:
"The material sought by the petitioner in his 2003 FOIL request is identical to the material previously sought in his 2001 FOIL request. After exhausting administrative remedies with respect to the 2001 request the petitioner, as noted previously, commenced a proceeding for judgment pursuant to Article 78 of the CPLR challenging the denial of the request. Petitioner’s Article 78 proceeding, however, was dismissed as time-barred. Under these circumstances, the Court finds that this proceeding challenging the denial of an identical 2003 FOIL request represents a belated attempt to obtain judicial review of the denial of petitioner’s 2001 FOIL request. See VanSteenburg v. Thomas, 242 AD2d 802 lv den 91 NY2d 803. This proceeding, therefore, must be also dismissed as time-barred" (Martin v. Travis, Supreme Court, Franklin County, August 23, 2004).
In an earlier decision, it was held by the Appellate Division that a proceeding was barred by the statute of limitations in a situation in which a request involved a challenge to a second denial of access on the basis of the same grounds as the first, and in which there was no apparent change in circumstances [Corbin v. Ward, 153 AD2d 515, leave to appeal denied by Court of Appeals, 72 NY2d 707 (1990)].
I hope that I have been of assistance.
Robert J. Freeman