FOIL-AO-17970

E-Mail

From:   Mercer, Janet (DOS)
Sent:    Monday, January 25, 2010 3:33 PM
To:      
Subject:           RE: FOIL noncompliance

Dear


            We have received your letter in which you indicated that you sent two Freedom of Information Law requests to the your village, one of which has not been answered and the other was refused because "it was not the proper form."

            In this regard, first, 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 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, which shall be reasonable in consideration of the circumstances relating to the request and shall not exceed twenty business days from the date of such acknowledgment, except in unusual circumstances.  In the event that such unusual circumstances prevent the grant or denial of the request within twenty business days, the agency shall state in writing both the reason for the inability to do so and a date certain within a reasonable time, based on such unusual circumstances, when the request shall be granted or denied."

       If neither a response to a request nor an acknowledgment 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 acknowledgment, 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.

            Second, although an agency may, pursuant to §89(3)(a) of the Freedom of Information Law, require that a request be made in writing, we do not believe that an agency can require that a request be made on a prescribed form.  As required by §89(3)(b) of the Freedom of Information Law, the Committee on Open Government has created model forms that may be used by the public when requesting records via email and by agencies for use in responding to those requests.  Those forms, however, are merely recommended models or templates, and agencies may choose to adopt the form recommended by the Committee, alter it, or create its own form.  Notwithstanding that guidance, there is nothing in the Freedom of Information Law that requires that a person seeking records must use an agency's prescribed form.  That being so, although use of a village's form may be of benefit to a person seeking village records, we do not believe that a village may require use of a village's form, either in paper or via email.

We have also advised that a failure to complete a form prescribed by an agency cannot serve to delay a response or deny a request for records. A delay due to a failure to use a prescribed form might result in an inconsistency with the time limitations imposed by the Freedom of Information Law. For example, assume that an individual requests a record in writing from an agency and that the agency responds by directing that a standard form must be submitted. By the time the individual submits the form, and the agency processes and responds to the request, it is probable that more than five business days would have elapsed, particularly if a form is sent by mail and returned to the agency by mail. Therefore, to the extent that an agency's response granting, denying or acknowledging the receipt of a request is given more than five business days following the initial receipt of the written request, the agency, in our opinion, would have failed to comply with the provisions of the Freedom of Information Law.

In sum, it is our opinion that the use of standard forms is inappropriate to the extent that it unnecessarily serves to delay a response to or deny a request for records.

            I hope that I have been of assistance.

Janet Mercer
Committee on Open Government
One Commerce Plaza
99 Washington Ave., Suite 650
Albany, NY 12231
(518) 474-2518
(518) 474-1927 - Fax
Website:  http://www.dos.ny.gov/coog/index.html