February 15, 1994



Mr. Mitch Paulsen
P.O. Box 0322
Baldwin, NY 11510

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

Dear Mr. Paulsen:

I have received your letter of January 19 and the
correspondence related to it.

According to the materials, on December 15, you submitted a
request to the Village of Garden City for copies of photographs
taken by the Village Police Department of your van and its
contents. Having received no response, you appealed to the Village
Comptroller on January 19 indicating that you had been in contact
with the Police Department and informed a representative of the
Department "that any criminal charges relating to the requested
investigative photographs have been dismissed as the Court ruled
that the accusatory instrument was defective..." You added that
the court dismissed the charges pursuant to §170.30 of the Criminal
Procedure Law and that you included a copy of the disposition.

You have sought an advisory opinion concerning the matter. In
this regard, I offer the following comments.

First, the Freedom of Information Law provides direction
concerning the time and manner in which agencies must respond to
requests and appeals. Specifically, §89(3) of the Freedom of
Information Law states in part that:

"Each entity subject to the provisions of this
article, within five business days of the
receipt of a written request for a record
reasonably described, shall make such record
available to the person requesting it, deny
such request in writing or furnish a written
acknowledgement of the receipt of such request
and a statement of the approximate date when
such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the
receipt of a request is given within five business days, or if an
agency delays responding for an unreasonable time after it
acknowledges that a request has been received, a request may, in my
opinion, be considered to have been constructively denied. In such
a circumstance, I believe that the denial may be appealed in
accordance with §89(4)(a) of the Freedom of Information Law. 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, who 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."

In addition, it has been held that when an appeal is made but
a determination is not rendered within ten business days of the
receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her
administrative remedies and may initiate a challenge to a
constructive denial of access under Article 78 of the Civil
Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57
NY 2d 774 (1982)].

It is unclear whether the person to whom you appealed, the
Comptroller, has been designated to determine appeals by the
Village Board of Trustees. In that person has been so designated,
I believe that he/she would have been required to respond in
accordance with §89(4)(a). If that person has not been designated
to determine appeals, I believe that he/she should have forwarded
your appeal to the appropriate person or body.

Second, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law.

Under the circumstances that you described, it would appear
that the only ground for denial of relevance would be §87(2)(e),
which authorizes an agency to withhold records compiled for law
enforcement purposes in certain instances. If indeed the
photographs involve your vehicle and if any charges relating to the
events that precipitated taking the photographs have been dismissed
in your favor, there would appear to be no valid basis for

Lastly, when charges are dismissed in favor of an accused,
records relating to the charges are generally sealed pursuant to
§160.50 of the Criminal Procedure Law. Section 160.50(1)(c) refers
to the sealing of "all official records and papers...on file with
any...police agency..." and paragraph (d) provides that "such
records shall be made available to the person accused or to such
person's designated agency..." Therefore, if you have described
the facts accurately, the records in question should have been
sealed and made confidential with respect to the public; however,
copies would likely be available to you under §160.50(1)(d) of the
Criminal Procedure Law.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Comptroller
Records Access Officer