December 5, 2014
FROM: Camille S. Jobin-Davis, Assistant Director
The staff of the Committee on Open Government is authorized to issued advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the New York City Department of Transportation. Specifically, you requested copies of records regarding a pedestrian plaza constructed on Jersey Street. In response, the Department initially indicated that it required twenty business days to respond, subsequently indicated it required an additional thirty business days, then, well after its self-imposed deadline, and only after repeated phone calls, indicated it required another thirty business days to respond. Based on advice from this office, you appealed on the grounds that the Department had constructively denied access due to its repeated delays and its failure to comply with the self-imposed deadline.
In response to your appeal, the Department provided various paper copies of records with redactions based on two separate legal exceptions (§§87[b] and [i]), indicated that there were no records responsive to one of the categories of records sought, and requested payment of $20.00.
You then submitted an appeal, on the grounds that the exceptions on which the Department relied to deny access to the records are inapplicable to most, if not all of the redactions made, and that the Department failed to provide all of the records that are responsive to the request. You requested, in the alternative, that the Department provide certification of a diligent search or that no such records exist. You further challenged the Department’s authority to charge $20, stating that you had requested the records be provided via email.
The Department declined to provide a substantive response to the “second” appeal, indicating only that any further review must be made through a proceeding under Article 78 of the Civil Practice Law and Rules.
We, respectfully, disagree with the Department’s refusal to reconsider its response to your second appeal. Our position is based on the language and intent of §89(3)(a) and (4)(a), which permits an applicant to administratively appeal before seeking judicial review.
We note that, on many occasions, when an agency either fails to respond to an appeal or fails to respond within a reasonable time, an applicant appeals based on the “constructive” denial of access. In those situations, the agency has not provided a definitive answer to the request for access, and has not relied on an exception to FOIL in order to withhold records, but rather has failed to respond, or failed to respond in accordance with the statutory time limits.
In our experience, agencies respond in two ways to this type of appeal. In some cases, the agency determines that the indicated time to respond is warranted, in which case the applicant can choose to wait for the agency’s substantive response, or it can challenge the agency’s denial in court. In others, the agency responds to the underlying request for records, providing or denying access based on the law. The difficulty arises when the applicant then attempts to challenge the grounds on which the agency relies to deny access to the records, and/or require a certification of diligent search. In these situations, the agency has effectively precluded the applicant from requiring a review of the denial of access on legal grounds, and in our opinion, is acting in contravention of law.
By way of background, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3)(a) 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, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.… If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the 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.”
Accordingly, it has long been advised that when an agency is unable to deny or provide access to records within five business days, it must provide a written response indicating either that it will respond within the next twenty business days, or that it is unable to respond until a certain date, providing both the date and the reasons for requiring additional time. Although we recognize that there are occasions when an agency will require an extension of time beyond that which it initially predicted, there is no provision in the statute for repeated extensions. It must, however, indicate the date by which it will respond, based on what is reasonable in consideration of attendant circumstances.
When an agency fails to comply with the time limits, or denies access to records, the Freedom of Information Law permits the applicant to file an administrative appeal, and, if the agency fails to comply with the law on appeal, judicial review pursuant to Article 78 of the Civil Practice Law and Rules. We note how the legislature chose to distinguish the two types of denials in §89(4)(a), as follows:
“...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”
“Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.”
Because it distinguished between the two types of denials, one in writing and the other due to a failure to respond in a timely manner, it is our opinion that the Legislature intended that there may be two types of appeals. One, from a denial of access in writing based on the law, and another, from a constructive denial of access as a result of the agency’s failure to comply with the time limits for response required by §89(3)(a).
An administrative appeal to the agency based on the exceptions to the Freedom of Information Law, prior to resorting to litigation is valuable to both the applicant and the agency for several reasons. On one hand, it provides the agency with the ability to revisit what may have been an improper substantive response in an efficient manner and without risk of an award of attorney’s fees. On the other hand, it provides the applicant with an efficient and cost-free method for challenging an agency’s response. In both scenarios, risks and time frames are kept to a minimum, and issues of law are thoroughly addressed.
An appeal based on an agency’s failure to comply with time limits or failure to respond at all, on the other hand, is a step under which an agency may either respond to the time limits issue or provide/deny access to records based on the law. In either situation, the agency has the authority to choose to determine whether the response time frame is reasonable or whether the records may be withheld. If the agency responds by providing/denying access to the records, and then refuses to entertain an administrative appeal based on substantive grounds, the agency has effectively precluded the applicant from administratively challenging the grounds on which the agency relies to deny access, and the ability to require a certification of a diligent search.
This section of law is not the only place where the legislature distinguishes between two types of appeals. FOIL similarly distinguishes between two types of denials when providing for the discretionary award of attorney’s fees in §89(4)(c). Although this provision was adopted more recently, it grants authority to the courts, after an administrative appeal, as follows:
“The court in such a proceeding may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when:
i. the agency had no reasonable basis for denying access; or
ii. the agency failed to respond to a request or appeal within the statutory time.”
Taking care to distinguish between the two types of denials, the legislature authorizes a court to award attorney’s fees when the agency had no reasonable basis, i.e., legal grounds, to deny access, or, in the alternative, when the agency failed to comply with the time limits for response. By permitting the courts the authority to award attorney’s fees in either situation, rather than in only one, in our opinion, the Legislature has recognized the possibility that an appeal may be made on either ground.
Finally, we note the intent of the Freedom of Information Law, as set forth in the legislative declaration, “… it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” In this particular instance, in our opinion, it would be contrary to the intent and the plain language of the statute for courts to allow an agency the ability to remove an applicant’s authority to administratively appeal a substantive denial of access based on one or more of the exceptions to rights of access appearing in §87(2).
We hope that this is helpful.