May 29, 2019

From:                      Robert J. Freeman, Executive Director
Subject:                   Request for Complaint


I have received your correspondence as well as materials relating to it. The initial issue involves a request for a complaint, including the identity of the person who made it, that was sent to the Town of Cicero.

As you know, the Freedom of Information Law (FOIL) is based on a presumption of access. All government agency records are available, except those records or portions of records that fall within one or more of the exceptions to rights of access appearing in §87(2) of that statute. It has generally been advised that the substance of a complaint is public, but that those portions of the complaint that identify the person making a complaint may be withheld on the ground that disclosure would constitute “an unwarranted invasion of personal privacy” [see FOIL, §§87(2)(b) and 89(2)(b)]. In this instance, however, our response would be different.

According to the materials, the person seeking the identity of the complainant indicated that the complaint, which named the subject, was reported in a local newspaper, and you enclosed a copy of the article. The article also identified the name of the person who made the complaint. The person who requested the complaint also said that the “the individual who filed the complaint information gave her a copy”. Based on those facts, which I assume are accurate, I do not believe that disclosure of the complainant’s identity would result in an unwarranted invasion of that person’s privacy. Again, the complainant’s identity was made known in the news article. However, I am unaware of the specific contents of the complaint. In consideration of the internet posts made by the subject of the complaint, which are described in the article as “homophobic, anti‐Muslim, anti‐women and contained images with blackface”, the complaint itself might include information or comments that would, if disclosed, result in an unwarranted invasion of the privacy of the subject of the complaint or perhaps others. In short, although I believe that that identity of the complainant should, under the circumstances, be disclosed, there may be other aspects of the complaint that may properly be withheld.

Second, you sought an opinion concerning criticism pertaining to “an acknowledgement response letter that stated that we would provide and or deny on or before the next 30 business [days] and gave date”.  You were questioned “when the 20 days was changed to 30 days.” In this regard, in brief, §89(3)(a) of FOIL requires that an agency respond to a request in some manner within 5 business days of its receipt. Within that time, an agency may disclose the record sought or deny access in writing, stating that the person denied access has 30 days to appeal the denial. If more than 5 business days may be needed to respond, the agency must within that time acknowledge receipt of the request in writing and provide an approximate date, ordinarily not in excess of 20 business days, indicating when the agency will grant the request in whole or in part. If toward the end of the 20 business day period, the agency finds that it needs additional time due, for example, to the nature of the request, its volume or complexity, the need to retrieve or redact, or for purpose of seeking legal guidance or other expertise, FOIL requires that the agency explain in writing its inability to determine rights of access within 20 business days and offer a “date certain”, a self‐imposed deadline, indicating when the request will be granted in whole or in part.

I hope that I have been of assistance.

Robert J. Freeman
Executive Director
Committee on Open Government
Department of State One Commerce Plaza 99 Washington Avenue
Albany, NY 12231

(518)474-2518 (p)
(518)474-1927 (f)