December 27, 2006
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 expressed frustration concerning a failure to comply with the Freedom of Information Law by the Gordon Heights Fire District. You asked whether there is any person or agency that might assist you in enforcing that statute.
In this regard, as you are aware, the functions of the Committee on Open Government are advisory; this office is not empowered compel an agency to comply with law or to grant or deny access to records. If it is believed that an agency has failed to comply with the Freedom of Information Law, and if an opinion rendered by this office has not resulted in compliance, an aggrieved person may seek judicial review of the agency’s actions by initiating a judicial proceeding under Article 78 of the Civil Practice Law and Rules. As indicated in the earlier opinion addressed to you, when an agency initially denies access to a record either in writing or by means of a failure to respond within the requisite time, the person denied access has the right to appeal to the head or governing body of the agency, or a person designated by the head or governing body to determine appeals. If an appeal is denied, the person denied access may initiate a judicial proceeding to seek review of the denial within four months of the agency’s determination. It is unclear on the basis of your correspondence whether you appealed or the Fire District responded in any way.
I note that the Freedom of Information Law was amended in August to provide courts greater flexibility in awarding attorney’s fees. A court may do so now when an applicant for records substantially prevails and it is determined that the agency had no reasonable basis for denying access or when the agency failed to comply with the new provisions enacted last year requiring timely responses to requests and appeals.
I hope that the foregoing will be of use and that I have been of assistance.
Robert J. Freeman