December 4, 2013
FROM: Camille S. Jobin-Davis, Assistant Director
The staff of the Committee on Open Government is authorized to issue 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 your ability to submit a FOIL request for access to records previously requested from the New York State Police. The chronology of your requests and the State Police’s responses is relevant, for the State Police failed to respond within the twenty business days initially indicated. Only until you forwarded a reminder, did the State Police respond to the substance of your request. And although you were informed of the name of the person to whom you could direct your appeal, you were not informed that you had only thirty days to appeal.
Because more than thirty days have passed since the denial of your request, and because I believe that the basis for the State Police’s denial of your request is inconsistent with law, I recommend that you file a second request. Should access again be denied, in my opinion, the State Police would be required to respond to your appeal.
As you may be aware, §89(4)(a) of the Freedom of Information Law pertains to the right to appeal a denial of access to records and states in relevant part that:
“...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 thereof 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. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal and the ensuing determination thereon.”
Any refusal to consider a subsequent appeal in my opinion represents a failure to comply with the requirement that the State Police “fully explain in writing...the reasons for further denial.”
To be distinguished from the facts here is a decision in which the applicant’s request and appeal were both denied. Although he exhausted his administrative remedies, he failed to initiate a judicial challenge to the agency’s denial within the four month statute of limitations. That failure precluded him from later making an identical request and appeal and then seeking judicial review [see Van Steenburgh v. Thomas, 242 AD2d 802 (1997)]. Again, in your situation, there was no appeal, and administrative remedies were never exhausted. The absence of an appeal following the initial denial of access in my view would not preclude you from appealing a denial following your second request, nor would it relieve the State Police of its responsibility to respond fully to your administrative appeal.
We hope that this is helpful.
c: Lieutenant Glenn Miner, Records Access Officer (via email)