From: Freeman, Robert J (DOS)
Sent: Wednesday, January 31, 2018 10:13 AM
Cc: Beckford, Julene (ESD)
Subject: RE: Request from Newsday
Good morning ‐ ‐ Despite your frustration, I hope that this finds you happy and well.
Notwithstanding the responses that have become too typical, FOIL precludes an agency from engaging in multiple delays. Section 89(3)(a) provides the rules regarding the time within which an agency must respond, and you are aware, I’m sure, of some of the following. First, when an agency receives a request, it has five business days to respond in some manner. Within that time, it may choose to disclose the records sought or deny access in writing. In any instance in which there is a denial, the applicant has the right to appeal to the head of the agency or that person’s designee. If more than five business days will be needed, the agency must acknowledge the receipt of the request in writing within that time and offer an approximate date, not to exceed twenty additional business days, indicating when it believes that it will grant the request in whole or in part. If toward the expiration of twenty business days, more time is needed to respond fully, the law requires that the reason for the delay be explained in writing and that the agency indicate a “date certain”, a self‐imposed deadline, regarding its response to grant the request in whole or in part. Note that the law specifies that any delay beyond five business days must be reasonable based on attendant facts and
circumstances. There is no provision that permits repeated delays.
If an agency fails to respond within five business days, within the twenty business day extension or by the date certain, the law states that the applicant may consider the request to have been denied and has the right to appeal. Section 89(4)(a) states in part that “Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.” The same section requires that an appeal be determined within ten business days of its receipt, and the determination must “fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.”
Section 89(4)(c) deals with the award of attorney’s fees. If a lawsuit is initiated and the court finds that the person denied access “substantially prevails”, the court may award attorney’s fees if the agency failed to respond within the proper time. If the court finds that the agency had no reasonable basis for denying access, it must award attorney’s fees payable by the agency.
Should you decide to appeal, it is suggested that you refer to the date of your original request, as well as the dates of ensuing notifications by the agency, and state that, in consideration of the failure to comply with the clear requirements imposed by §89(3)(a), you consider the request to have been denied and that you are appealing on that basis. You might also remind the appeals officer of the obligation to disclose the records within ten business days of the receipt of the appeal or fully explain in writing the reasons for further denial.
Under “Publications” on our website is a general guide to FOIL and the Open Meetings Law, “Your Right to Know.” The guide contains two sample letters of appeal. One deals with the situation in which an agency denies access in writing; the other deals with a constructive denial due to an agency’s failure to respond within the proper time. The latter might be of utility to you.
The person at ESD to whom an appeal may be directed is Julene E. Beckford, Associate Counsel and Appeals Officer. Ms. Beckford can be reached via email at Julene.firstname.lastname@example.org.
I hope that I have been of assistance.Bob Freeman