Sent: Friday, March 11, 2011 8:39 AM
Subject: RE: FOIL
I apologize for the delay in responding to you.
With respect to your situation, when an agency, such as a town, receives a request, the law requires that a response be given within five business days of its receipt. Within that time, the agency has three options. First, it may grant the request or deny access in writing. In any instance in which any portion of a request is denied, the applicant has the right to appeal. In the case of a town, the appeal would be made to the town board or to a person or body designated by the board to determine appeals. Second, if an agency needs more than five business days to respond, it is required to acknowledge receipt of the request within that time in writing and provide an approximate date, not to exceed twenty additional business days, indicating when it believes
that the request will be granted in whole or in part. The law requires that the approximate date be reasonable in consideration of the facts and circumstances. And third, in an usual situation in which the agency needs more than twenty additional business days, due to the volume or omplexity of the request, a written acknowledgement must include an explanation for the delay and a "date certain", a self-imposed deadline indicating that it will grant or deny access by a particular date. Again, if that date is reasonable, the agency would be complying with law.
If an agency fails to respond in accordance with the options described above, i.e., if it fails to respond in any way within five business days of the receipt of a request, if an acknowledgement of the receipt of a request has been given but more than twenty business days have passed without having received a response, or if the date certain has passed, the applicant may consider the request to have been denied and has the right to appeal. When an appeal is made, the appeals person or body has ten business days from the receipt of the appeal to grant access to the records or fully explain in writing the reasons for further denial.
Since you have apparently received no response to your request, I believe that you have the right to appeal. It is suggested that you phone the office of the Town Clerk and ask for the name of the person or body to which an appeal may be made.
Lastly, if an appeal is denied or is not determined within ten business days of its receipt, the person denied access may challenge the denial by initiating a judicial proceeding under Article 78 of the Civil Practice Law and Rules. When an agency denies access to records sought pursuant to the Freedom of Information Law, it has the burden of proving that an exception to rights of access justifies the denial. Further, when a person denied access substantially prevails, the court has the authority to award attorney's fees, payable by the agency, when it finds that the agency had no reasonable basis for denying access or failed to comply with the time limits for response described in the preceding commentary.
I hope that I have been of assistance.
Robert J. Freeman
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231