From: Jobin-Davis, Camille (DOS)
Sent: Wednesday, December 05, 2007 4:04 PM
Subject: Freedom of Information Law - appeal constructive denial
In response to your question about how long an applicant would have to appeal a constructive denial of access, please note that there is no case law regarding this issue and the statute does not address it. Upon reflection, I believe that as long as an agency continues to indicate that it is continuing to search for requested records, the applicant has the ability to appeal. FOIL requires that the agency provide a date specific by which it will respond in full. If it does not, if it only indicates that it is continuing to search for records, the agency has, in my opinion, left the door open for an appeal to its constructive denial. I have discussed the question with the executive director here. We agree that as long as an agency does not provide a date specific by which it will respond in full, as required by statute, the applicant continues to have the ability to appeal a constructive denial of access.
I hope this is helpful.
Camille S. Jobin-Davis, Esq.
NYS Committee on Open Government
Department of State
41 State Street
Albany NY 12231
(518) 474-1927 fax