From: Freeman, Robert J (DOS)
Sent: Thursday, January 29, 2015 8:58 AM
Subject: RE: FOIL F10, 309 packet

Good morning - -

I’d like to offer several points in relation to the materials that you forwarded.

First and perhaps most importantly, FOIL gives an agency two extensions when responding to requests.  To put the issue in perspective, a) when an agency receives a request, it has five business days to respond in some manner.  Within that time it can grant or deny access to the records sought.  In any instance in which there is a denial, the applicant has the right to appeal to the head of the agency or that person’s designee.  If more than five business days will be needed, b) the agency must acknowledge the receipt of the request within that time and provide an approximate date, typically not to exceed 20 additional business days, indicating when it believes that the request will be granted in whole or in part.  Any such delay must be reasonable in consideration of the facts.  And c), if it is known from the start that more than 20 additional business days will be needed, or if toward the expiration of the 20 business day period indicated in the acknowledgement, it is determined that more time will be needed, the agency must inform the applicant of the reason for the delay beyond 20 business days in writing and provide a “date certain” a self-imposed deadline, indicating a promised date by which access will be granted in whole or in part.  Again, that date must be reasonable based on attendant facts and circumstances.

Second, if any of those deadlines is missed - - if five business days have passed with no response, if the 20 business day extension has come and gone, or if there is no response by the “date certain”, the applicant may consider the request to have been denied and may, therefore, appeal the denial.  When an agency receives an appeal, it has ten business days to grant access to the records or fully explain in writing the reasons for further denial.  If the agency does not determine the appeal within that time, the applicant may consider the appeal to have been denied and may seek judicial review of the denial by initiating a proceeding under Article 78 of the Civil Practice Law and Rules.

Third, if such a proceeding is initiated based on a written denial of an appeal or a failure to determine the appeal within 10 business days of the receipt of the appeal, and the court finds that the applicant has “substantially prevailed”, it may award attorney’s fees to the person denied access if it is determined that the agency had no reasonable basis for denying access, or if the agency failed to abide by the time limitations described in the preceding paragraphs.

Caveats:  Having reviewed your requests, it may be important to note that FOIL pertains to existing records, and that an agency is not required to create records on behalf of an applicant.  However, FOIL also states that when information sought is maintained electronically and can be extracted or retrieved with reasonable effort, it is required to do so.  Also, FOIL requires that an applicant “reasonably describe” the records sought.  The Court of Appeals has held that whether or the extent to which a request meets that requirement is often related to an agency’s filing, recordkeeping or retrieval system.  When records can be located and retrieved with reasonable effort, the request meets the standard.  However, if an agency can only locate records by engaging in a search for the needle in the haystack, the request does not reasonably describe, and the agency would not be required to engage in the effort necessary to locate and retrieve the records.

I hope that I have been of assistance.  If you would like to discuss the matter, please feel free to contact me.

Bob Freeman