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FOIL-AO-16786

From: Freeman, Robert (DOS)
Sent: Tuesday, September 11, 2007 4:11 PM
To:
Subject: FOIL - problem

Dear

I have received your letter and believe that you misunderstand the statute of limitations relating to the Freedom of Information Law. When a request is initially denied, an applicant has thirty days to appeal the denial. However, when an appeal is denied, the person denied access has four months from that final agency determination to initiate an Article 78 proceeding.

There is no judicial decision of which I am aware dealing with the situation in which an appeal is ignored and the applicant as much as a year later seeks to challenge the constructive denial of the appeal in court. As you may be aware, when an agency receives an appeal, it has ten business days to determine the appeal. If the agency fails to do so, the applicant may consider the appeal to have been denied and may initiate an Article 78 proceeding. Therefore, at the very least, he or she would have four months from the date that the appeal should have been determined to initiate such a proceeding. If, however, the facts indicate that an agency repeatedly indicated that it would respond to an appeal but failed to do so, I believe that a court would find that the applicant relied to his/her detriment on the representations of the agency and that, therefore, the statute of limitations would be extended accordingly.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
NYS Committee on Open Government
Department of State
41 State Street
Albany, NY 12231
(518) 474-2518
(518) 474-1927 - fax
www.dos.ny.gov/coog/coogwww.html