December 10, 2013


The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuring staff advisory opinion is based solely upon the information presented in your correspondence.



I have received your letter in which you indicated that your client, the Journal News, “has been orally advised that the Rockland County Clerk will disregard the determination of its FOIL appeals officer and “decline to provide the names and addresses of gun permit holders who have not exercised their opportunity to opt out of the public database.”

  As you are aware, it was advised in a separate opinion that the information at issue, when requested by a member of the news media for news gathering purposes, must be disclosed.  Due to the stance taken by the County Clerk, you have asked “whether an agency may disregard a determination of the appeals officer” and raised a question concerning “the effect of the failure of an agency to issue a written statement explaining the basis for its refusal to abide by the determination of a FOIL appeal officer.”

  In this regard, by way of background, §87(1)(a) of the Freedom of Information Law (FOIL) states that:

“Within sixty days after the effective date of this article, the governing body of each public corporation shall promulgate uniform rules and regulations for all agencies in such public corporation pursuant to such general rules and regulations as may be promulgated by the committee on open government in conformity with the provisions of this article, pertaining to the administration of this article.”

            Based on the provision quoted above, within sixty days after January 1, 1978, the governing body of a public corporation, i.e., a county legislature or board of supervisors, was required to develop “uniform rules and regulations for all agencies in such public corporation”, consistent with the procedural regulations promulgated by the Committee on Open Government.  The Committee’s regulations, published as 21 NYCRR Part 1401, were promulgated in 1978.

  When a request for a record or records is denied, the person denied access has the right to appeal the denial pursuant to §89(4)(a) of FOIL.  That provision 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 or 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 explaining in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.” 

Based on the foregoing, the head or governing body of an agency, or the person or body designated by the head or governing body, must determine an appeal and either “provide access” to the records that had been withheld, or “fully explain” the reasons for further denial; that person or body is empowered to determine rights of access following a denial of access and an appeal.  The person or entity that initially denied access that is under the umbrella of a public corporation plays no role in the appeal process, and to ensure an independent judgment in response to an appeal, the Committee’s regulations state in §1401.7(b) that “[t]he records access officer shall not be the appeals officer.”

    If a department head or other agency employee has the ability to ignore or reject the determination of the person authorized to render a final determination, §89(4)(a) of FOIL would be all but meaningless, and the head or governing body of the agency would lose the ability to govern in a manner consistent with law.  Stated differently, if agency personnel do as they wish, notwithstanding the authority of leadership of the agency or the rule of law, the result would be chaos.  The public would no longer be able to rely on or expect that government would recognize or abide by the law.

    I am unaware of any instance in which an agency’s final determination of an appeal that grants access has been rejected by the person who engaged in the initial denial of access.  I believe, however, that if records have not been disclosed within ten business days of the receipt of an appeal, despite a determination to grant access, the applicant for the records may consider the request to have been denied and challenge the denial through the initiation of a judicial proceeding.  As you are likely aware, §89(4)(c) of FOIL authorizes a court in such a proceeding to award reasonable attorney’s fees and other litigation costs when the person denied access has “substantially prevailed” and the court finds that either that the agency had no reasonable basis for denying access, or “the agency failed to respond to a request or appeal within the statutory time.”

In the unique circumstance in which a particular public officer has refused to abide by the determination of the person authorized to do so and instead has chosen to refuse to recognize his or her responsibilities imposed by law, a court might find that the public officer acted beyond the scope of his authority and, therefore, is personally liable for payment of attorney’s fees and other litigation costs. 

Although I am not an expert with respect to the Penal Law, it is possible that one or more provisions of that chapter might be pertinent.  Section 195.00 concerning official misconduct applies when a public servant, “with intent to…deprive another person of a benefit…knowingly refrains from performing a duty which is imposed upon by law…”  Section 195.05 involves obstructing governmental administration when a person “intentionally obstructs, impairs or perverts the administration of law or attempts to prevent a public servant from performing an official function, by means of…interference…or any independently unlawful act…”

In an effort to encourage the County Clerk to alter his stance and comply with law, a copy of this opinion will be sent to him.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director

cc:  Hon. Paul Piperato, County Clerk
Terry Grosselfinger