August 10, 2012
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.
Thank you for your July 12, 2012 correspondence, in which you express concerns with respect to the Princetown Town Board appointing itself for the purpose of responding to appeals made pursuant to the Freedom of Information Law.
In this regard, we note relevant provisions of §89 of the Freedom of Information Law, which provide for such option, as follows:
“4. (a) Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such 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.”
The corresponding regulation, 21 NYCRR §1401.7(a) states in relevant part that:
“The governing body of a public corporation or the head, chief executive or governing body of other agencies shall determine appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.”
In sum, according to these provisions, in the absence of any designation of appeals officer, the town board shall determine appeals regarding the denial of access to records.
Although it is statutorily authorized, we agree that perhaps it is not the wisest decision to appoint the entire board to the FOIL appeals board position. Due to the requirement that an appeal be determined within ten business days, it would be the responsibility of the Town Board to meet within that time and fully respond to the appeal in writing, either providing or denying access to the records. There may be occasions when it may not be possible to gather a quorum of the board within the ten business day period, and as you note, it may not be sufficient for the board to address the issue at its monthly meeting.
Some municipalities designate counsel to determine appeals, some designate the town supervisor, and while there may be provisions of a local code of ethics that would modify that designation in practice, we know of no law that would prohibit the handling of an appeal by any particular person, except the person designated as the records access officer. (See 21 NYCRR §1401.7(b).)
Section 89(4)(b) of the Freedom of Information Law 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 Law and Rules.
We hope that this is helpful.
Camille S. Jobin-Davis
cc: Town Board