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FOIL-AO-17021

February 26, 2008

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

            I have received your letter in which you indicated that you have not yet been granted or denied access to records requested from the Village of Seneca Falls Police Department in October.  You added that you were told that if you did not obtain the records within two days of being informed that they would be available to you, the records would be destroyed.

            In this regard, first, it appears that the Police Department has failed to comply with the Freedom of Information Law.  Specifically, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests.  Specifically, §89(3) of the Freedom of Information Law states in part 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...”

            It is noted that new language was added to that provision in 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.

            The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure.  They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon “the circumstances of the request.”

            In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:

“The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the  materials fall within one of the exceptions to disclosure.  Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL”(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).

            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.

            I note that legislation enacted in broadened the authority of the courts to award attorney’s fees when government agencies fail to comply with the Freedom of Information Law.  Under the amendments, when a person initiates a judicial proceeding under the Freedom of Information Law and substantially prevails, a court has the discretionary authority to award costs and reasonable attorney’s fees when the agency had no reasonable basis for denying access to records, or when the agency failed to comply with the time limits for responding to a request.

            Second, based on §89(8) of the Freedom of Information Law and §240.65 of the Penal Law entitled “Unlawful prevention of public access to records”, the Department cannot destroy or dispose of records when a request is pending.

            Lastly, it has been held that an agency may charge its established fee, which generally cannot exceed twenty-five cents per photocopy, even when a person seeking records is indigent [see Whitehead v. Morgenthau, 552 NYS2d 518 (1990)].

            I hope that I have been of assistance.

RJF:jm

cc: Chief of Police