July 13, 1994
Mr. Albert Rios
Rte. #12E - PO Box 739
Cape Vincent, NY 13616
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
Dear Mr. Rios:
I have received your letter of June 29 which you sought clarification of the Freedom of Information Law.
You asked what can be done if a request for records is made but no answer is given. You also wrote that "found something that in short states that under the FOIL they have 10 days to acknowledge [your] request and give [you] any information".
In this regard, §89(3) of the Freedom of Information Law requires that an agency respond to a request within five business days of the receipt of a request. If more than five business days is needed to locate or review records, the agency must acknowledge the receipt of the request and provide "a statement of the approximate date when such request will be granted or denied..." The Committee on Open Government, by means of regulations promulgated in 1978 pursuant to §89(1)(b)(iii) of the Public Officers Law, sought to insure timeliness of response by requiring agencies to grant or deny access to records within ten business days of the acknowledgement of the receipt of a request [21 NYCRR 1401.5(d)]. However, the court in Lecker v. New York City Board of Education, [157 AD 2d 486 (1990)] invalidated that portion of the regulations on the ground that the statute does not include a time limitation within which agencies must determine to grant or deny access to records following the acknowledgement that a request has been received. As such, the requirement in the Committee's regulations that agencies grant or deny access to records within ten business days after acknowledging the receipt of a request is apparently no longer binding.
Nevertheless, §87(1)(a) of the Freedom of Information Law states that a public corporation, such as the City of New York:
"shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article."
With respect to New York City agencies, it is noted that the "Uniform Rules and Regulations Pertaining to the Administration of the Freedom of Information Law" promulgated by Mayor Koch that became effective in 1979, and which were amended in 1988, state in part in §5(d):
"If because of unusual circumstances, an agency is unable to determine within five days whether to grant, deny or otherwise respond to a request for inspection and copying, the records access officer shall, within such five day period, acknowledge receipt of the request in writing to the requesting party, stating the approximate date, not to exceed ten business days from the date of the acknowledgement, by which a determination with respect to the request will be made. If the agency does not make a determination with respect to the request within ten days from the date of such acknowledgement, the request may be deemed denied and an appeal may be taken to the person or body designated in the agency to hear appeals."
As such, regulations applicable to agencies within the jurisdiction of the Mayor of New York City, including the Police Department, specify the time limits for responding to requests and continue to include the ten day limitation for granting or denying a request after the receipt has been acknowledged.
As a general matter, 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 when such request will be granted or denied..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision 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."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, 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 [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)]. For your information, the person designated to determine appeals under the Freedom of Information Law at the New York City Police Department is Susan R. Rosenberg, Assistant Commissioner.
I hope that I have been of some assistance.
Robert J. Freeman
cc: Sgt. William J. Matusiak, Records Access Officer
Susan R. Rosenberg, Assistant Commissioner