September 25, 2009
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 seek an advisory opinion concerning the “time limits set forth in Public Officers Law §89(3)(a) for an agency to respond to a FOIL request.” Specifically, you raised the following questions:
“1. If an agency subsequently amends (i.e., extends) its previously stated ‘date certain’ by which requested records will be provided, does the agency’s failure to provide the requested records by the original ‘date certain’ constitute an ‘effective denial’ that is subject to administrative appeal under Public Officers Law §89(a)?
2. Or, must an administrative appeal allege that the newly amended/extended ‘date certain’ is unreasonable under the circumstances of the request?”
General Counsel to the Office of Temporary and Disability Assistance (OTDA) has contended “[r]ecalculation of the initial ‘date certain’” “is reasonable and permissible under the FOIL”, and he cited the decision in Linz v. The Police Department of the City of New York (Supreme Court, New York County, NYLJ, December 17, 2001) in support of that contention.
In the circumstance that you described, I believe that to contend that an agency engaged in a constructive denial of access due to a failure to grant access to the records sought in whole or in part by the date certain, an appeal must allege that the date certain is unreasonable.
In this regard, Linz was decided several years prior to the enactment of amendments to the Freedom of Information Law in 2005 that included new provisions concerning the time within which agencies must respond to requests and which, for the first time, referred to or included direction concerning an agency’s designation of a “date certain” by which it would determine to grant a request in whole or in part. That being so, I do not believe that the decision rendered in Linz is determinative of the matter.
Section 89(3)(a) now states in relevant 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 acknowledgment 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...If an agency determines to grant a request in whole or in part, and 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.”
There is no language in the statute authorizing a “recalculation” of a date certain referenced by an agency in response to a request.
I point out, however, that the regulations promulgated by the Committee on Open Government (21 NYCRR §1401 et seq.) evidence a recognition that an agency may determine, following the acknowledgment of the receipt of a request and an estimate that it can grant a request within twenty additional business days, that the request is more extensive or burdensome than initially believed. In that circumstance, the regulations provide that an agency may recalculate the time for responding, so long as it provides an explanation for the delay and a ‘date certain’, a self-imposed deadline for response that must be reasonable in consideration of attendant facts and circumstance. Section §1401.5(c)(4), states that an agency must respond in the following manner by:
“if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment stating the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.”
Additionally, §1401.5(e)provides that:
“A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which an agency...
(7) responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which it will do so, but such date is unreasonable under the circumstances of the request” (emphasis added).
Although there is no provision in the Freedom of Information Law or the regulations, nor is there any judicial decision of which I am aware, that permits an agency to create or designate an extension of time to grant a request in whole or in part beyond the date certain that it identifies, I believe that the regulations enable an applicant to contest and, therefore, authorize a court to determine, whether the date certain specified by an agency is reasonable in consideration of circumstances relating to a request.
I hope that I have been of assistance.
Robert J. Freeman
cc: John P. Bailly, Jr.