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FOIL-AO-16098

August 7, 2006

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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. Hanse:

I have received your letter in which you asked whether the "comptroller’s actions seem to constitute a denial" of your request made under the Freedom of Information Law for a certain record.

You wrote that on March 8, you requested a copy of an "emergency contract provided to Empire Blue Cross Blue Shield for providing prescription drug coverage for governmental employees until 12/31/07." On April 17, you received a letter from the State Comptroller’s records access officer indicating that "due to the volume of records involved and the nature of the review process, it may take up to 60 business days before we make a determination...." She added that you would be contacted "no later than 7/12/06 to inform you of any cost associated with producing or photocopying the records." You sought to clarify your request on April 21 by specifying that you are seeking only one document, the executed contract, and no others. Because you received no further response, you contacted the records access officer on July 24, who informed you, in your words, that "the document contained trade secrets and the company had yet to deal with them and that seemed to be the reason for the delay."

From my perspective, the foregoing reflects a failure to comply with law. In this regard, several provisions in the Freedom of Information Law are relevant, and I offer the following comments.

First, §89(5) pertains to situations in which commercial enterprises submit records to state agencies and provides that, at the time of submission, they may request that the records or portions thereof be excepted from disclosure based on §87(2)(d). In brief, that provision authorizes an agency to withhold trade secrets and other records when disclosure would cause substantial injury to the competitive position of a commercial enterprise. Paragraph (b) of §89(5) deals with requests for records that commercial enterprises have asked to be kept confidential and requires that an agency must:

"(1) inform the person who requested the exception of the agency's intention to determine whether such exception should be granted or continued;
(2) permit the person who requested the exception, within ten business days of receipt of notification from the agency, to submit a written statement of the necessity for the granting or continuation of such exception;
(3) within seven business days of receipt of such written statement, or within seven business days of the expiration of the period prescribed for submission of such statement, issue a written determination granting, continuing or terminating such exception and stating the reasons therefor; copies of such determination shall be served upon the person, if any, requesting the record, the person who requested the exception, and the committee on open government."

It is unclear whether the entity that is a party to the contract requested that the contract or portions thereof be excepted from disclosure. If no such request was made, §89(5) would not apply. In that event, the general provisions concerning the time for responding to requests described in §89(3) would be applicable. If such a request was made, it is clear, in consideration of the date of your initial request, that the agency’s time for granting or denying access in whole or in part has expired. If that is so, I believe that you may consider you request to have been denied and that you may appeal the denial in accordance with §89(4)(a).

If §89(3) applies, again, I believe that your request has, at this juncture, been constructively denied. That provision states 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, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, including, where appropriate a statement that access to the record will be determined in accordance with subdivision five of this section."

It is noted that new language was added to that provision on May 3, 2005 (Chapter 22, Laws of 2005) stating that:

"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgement is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.

If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgement, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which 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."

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, 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.

In an effort to enhance compliance with the Freedom of Information Law, a copy of this opinion will be forwarded to the records access officer.

I hope that I have been of assistance.

RJF:jm

cc: Shelly Brown