January 13, 2016
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.
We are in receipt of your request for an advisory opinion regarding the manner in which Empire State Development responded to your Freedom Information Law (FOIL) request.
By way of background, FOIL 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 an acknowledgement within that time indicating an approximate date, not to exceed twenty additional business days, on which it will grant access in whole or in part. If it is determined, either within five business days of the receipt of the request, or at or near the expiration of twenty business days of its acknowledgement, that it is unable to respond within twenty additional business days, it must indicate a “date certain” that includes 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 an extension beyond the date certain or repeated extensions. The date certain must be reasonable based on attendant facts and circumstances.
When an agency fails to comply with the time limits for response as described in §89(3)(a), or denies access to records in writing, FOIL permits the applicant to file an administrative appeal, and, if the agency denies the appeal, that person may seek judicial review pursuant to Article 78 of the Civil Practice Law and Rules. We note that 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 distinguishes 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 an exception to rights of access, and the other, 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).
As stated earlier, there is no provision in the statute for repeated extensions. Because the agency notified you on three separate occasions prior to your December 14, 2015 appeal (and one additional time after your appeal) that it would need additional time to grant or deny access based on §87(2) of FOIL, we believe that it was reasonable, upon receipt of the third extension notice, to construe this failure to determine rights of access as a constructive denial on the part of the agency. I point out that §89(3)(a) of FOIL requires an agency to state “the reason for the inability to grant the request within twenty business days” when advising a requestor that it requires additional time to respond. The September, October, December, and January extension letters from the agency records access officer do not include a reason for the delay in response.
The agency’s FOIL appeals officer responded to your December 14, 2015 appeal of its constructive denial by stating, in part, that “ESD is diligently working on preparing its responses to all FOIL requests, and to the extent that is reasonable give the nature of the request and the materials, responding to requests in the order that they were received. Given this context, the time to process your request is not unreasonable.” We point out that the decision cited by Mr. Pidedjian to justify the delays, Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, was decided in 2007, before the enactment of amendments to §89(3)(a) concerning the time in which agencies must respond to requests.
In our opinion, it is unreasonable for an agency to delay its response when requested records can be located with facility and are clearly public. That other earlier requests involved records that may be voluminous, difficult to locate, and/or time consuming to review would not, in our view, authorize an agency, as a matter of practice of policy, to deal with requests solely on the basis of the dates of their receipt.
We are unaware of the volume or complexity of the records that the agency has determined to be responsive to your request. I would suggest that the agency carefully review your request, as well as the attendant circumstances regarding its ability to respond, and that it provide you, in writing, with a reason for the delay, and a date certain when the request will be granted in whole or in part.
I hope that I have been of assistance.
cc: ESD Records Access Officer
FOIL Appeals Officer