FOIL AO 19780
By electronic mail only
September 21, 2020
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.
We are in receipt of your request for an advisory opinion regarding the manner in which the Bronx County District Attorney’s Office responded to your Freedom of Information Law (FOIL) request.
In response to your administrative appeal of the agency’s constructive denial of your client’s FOIL request, the agency’s FOIL appeal officer responded on July 2, 2020, with the following:
I am reversing the constructive denial and remanding to the FOIL Unit to process once non-essential matters are permitted to resume in the Office.
The Governor’s Executive Order No. 202.8 as extended by Executive Order No. 202.38 ‘Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency’ provides that through July 6, 2020:
In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until [July 6, 2020].
N.Y. Exec. Order No. 202.8 (March 20, 2020) as extended by N.Y. Exec. Order No. 202.38 (June 6, 2020).
First, there is nothing in the FOIL that authorizes a FOIL appeal officer to “remand” a FOIL request back to the records access officer for further review. The FOIL 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 our view, the appeal determination “remanding” your request to the FOIL officer for processing is not sufficient to comply with law.
Second, in our view, none of the Governor’s executive orders relating to the COVID-19 disaster emergency, including Executive Order 202.8 which addresses statutes of limitation for commencing actions in the New York State courts as set forth in the state’s procedural laws, suspends the time limits applicable to an agency’s obligation to respond to a FOIL request or a FOIL appeal. All agencies continue to be required to comply with the time limits set forth in the FOIL and related regulations promulgated by the Committee on Open Government.
I hope this information proves useful.
cc: Peter D. Coddington, Foil Appeals Officer