June 13, 2018
FOIL AO 19671
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, except as otherwise indicated.
As you are aware, I have received your correspondence concerning a request for records of the New York City Department of Parks and Recreation made pursuant to the state’s Freedom of Information Law (FOIL). You have objected to the projected delay in disclosure as indicated in the acknowledgement of the receipt of a request. Specifically, you were informed on May 30 that:
“Parks will attempt to provide with access to non-exempt records responsive to your request within twenty (20) business days from the date of this letter. However, due to the volume of FOIL requests being processed by the agency at this time, and due to staff limitations, Parks anticipates that it will require ninety (90) business days from the date of this letter.”
It is your belief that the response quoted above has become “boilerplate”, and you added:
“I’m not sure why Alessandro [Olivieri, General Counsel] continues to insist this language be included in FOIL responses which are now standard in the agency knowing full well the agency is not in compliance.”
In this regard, I offer the following comments.
First, §84 of FOIL, the “Legislative declaration”, clearly indicates the intent of that statute and provides in part that “It is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible”. Based on that direction, it has been consistently advised that there may be no supportable or valid reason for delaying disclosure of records that are clearly public and readily retrievable.
Second, aside from the direction given in the Legislative declaration, when an agency needs more than five business days from the receipt of a request, §89(3)(a) requires that the agency acknowledge the receipt of the request in writing within that time that includes “a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied…” In the rare instance in which “circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of 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.”
In my view, the key words in the preceding sentence are “prevent” and “inability.” It is likely that many agencies receive more requests now in 2018 than in years past. If it is known that the number and nature of requests for records result in ongoing, routine or repeated delays of up to ninety business days following the receipt of requests, an agency in my view would be failing to meet its responsibilities in complying with law. The circumstance associated with the delay, staff limitations, does not involve an agency’s “inability” to respond to requests promptly, but a failure to allocate sufficient resources to enable the agency to give effect to the spirit, if not the letter, of the law. It is my understanding that the Department’s current budget is approximately five hundred million dollars. If that is so, I believe that it would be unreasonable to fail to allocate resources sufficient to realize the intent of FOIL in a manner that does not result in a routine delay for as long a time as suggested in the response to your request.
As the Court of Appeals unanimously held in 1979, “Meeting the public’s legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds” (Doolan v. BOCES, 48 NY2d 341, 347).
In an effort to encourage the Department to improve compliance with FOIL, copies of this opinion will be sent to Department officials.
I hope that I have been of assistance.
From: Robert J. Freeman, Executive Director