December 14, 2006
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 facts presented in your correspondence.
I have received your inquiry in which you sought clarification concerning whether “the FOIL request timeline starts when each agency receives the request.”
In my view, based on the direction provided in §89(3)(a) of the Freedom of Information Law, it is clear that the time within which an agency must in some manner respond to a request begins upon receipt of a request by an agency.
The introductory phrase in §89(3)(a) states 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...”
In consideration of the language quoted above, I believe that the “timeline” begins to run when an entity is in “receipt” of a request. As you are likely aware, the regulations promulgated by the Committee on Open Government require that each agency must designate one or more persons as “records access officer” and that a records access officer has the duty of coordinating an agency’s response to requests (see 21 NYCRR §1401.2). It has been contended that the time for responding does not begin until a request is in possession of a records access officer. That contention, however, is, in my view, contrary to the language of the law and could result in unreasonable delays in considering requests for records. From my perspective, the term “receipt” is intended to refer to the time when a request comes into the possession of an agency. Further, an element of the records access officer’s duty to “coordinate” an agency’s response to requests, in my opinion, includes insuring that requests are directed to proper persons when a request is received, or to use the term in the law, when the agency is in “receipt” of a written request.
I note that the initial phrase in the cited provision refers to “Each entity”, and I believe that is so because the definition of “agency” appearing in §86(3) excludes the State Legislature. Section 88, however, which is part of the Freedom of Information Law, pertains specifically to the State Legislature. For that reason, §89, entitled “General provisions relating to access to records”, refers to “Each entity”, rather than “each agency” in order to ensure that the general provisions of the law apply to the State Legislature, as well as agencies.
I hope that the foregoing offers the clarification that you seek and that I have been of assistance.