FOIL AO 19639

December 20, 2017

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.

Dear :

We are in receipt of your request for an advisory opinion regarding the manner in which the City of Buffalo responded to your Freedom of Information Law (FOIL) appeal. 

On November 29, 2017, Timothy Ball, Corporation Counsel for the City of Buffalo, responded to your FOIL appeal relating to a denial of access to records maintained by Buffalo Police Department.  The appeal determination upheld the denial in part, but also directed the Police Department to gather and review other records responsive to your request to determine rights of access.  The appeal determination did not provide a date by which this review would be completed.

Section 89(4)(a) of FOIL states, in pertinent part, that the individual designated by an agency to handle FOIL appeals “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.” (emphasis mine)

There is nothing in the Law that authorizes a FOIL appeal officer to remand a FOIL request back to the records access officer for further review.  The Law states that the appeal officer is obligated to either fully explain in writing the reasons for further denial “or provide access to the record sought.”  In my view, the appeal determination issued by the City is not sufficient to comply with law.

In an effort to encourage the City to respond to your FOIL appeal as expeditiously as possible, copies of this opinion will be sent to Mr. Ball as well as the records access officer for the Police Department.


Kristin O’Neill
Assistant Director

cc:    Timothy A. Ball, Corporation Counsel
Captain Mark A. Antonio, Buffalo PD