January 4, 2005
I appreciate having received copies of numerous determinations following appeals made pursuant to the Freedom of Information Law. In several, you have granted appeals and remanded them to the Department’s records access officer for reconsideration. In those determinations, you wrote that the records access officer "shall issue a new determination within sixty days of the date of this decision."
Based upon its clear language, those determinations, in my view, are inconsistent with the Freedom of Information Law. Specifically, §89(4)(a) 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 thereof 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 reasons for further denial, or provide access to the record sought" (emphasis added).
As I understand the foregoing, an agency in receipt of an appeal has two options: within ten business days of its receipt, the agency must either fully explain its reason for further denial or make the records available. Delaying disclosure for as much as sixty additional days in my view represents a failure to comply with law.
If you would like to discuss the matter, please feel free to contact me.
Robert J. Freeman
cc: Tyrone Ford