November 7, 2006
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 facts presented in your correspondence.
I have received your letter in which you indicated that the City of Yonkers has a mayor and a city council, and asked, for purposes of appealing a denial of access to records, whether you may “appeal to one or the other.”
From my perspective, the rules and regulations required to have been adopted must indicate the identity of the appeals person or body. In this regard, I offer the following comments.
By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1)(a) of the Law states that:
"the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."
In this instance, the governing body of a public corporation, the City Council, is required to promulgate appropriate rules and regulations consistent with those adopted by the Committee on Open Government and with the Freedom of Information Law. Further, §1401.7(a) of the regulations promulgated by the Committee states that: “The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.” Because a city is a public corporation, I believe that an appeal may be made to the City Council or a person or body designated by the City Council to determine appeals.
It is suggested that you contact either the City Clerk or the office of the corporation counsel to ascertain the identity of the person or body designated to determine appeals.
I hope that I have been of assistance.