December 19, 1995



Mr. Robert C. Black
P.O. Box 3142
Albany, NY 12203-0142

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.

Dear Mr. Black:

I have received your letter of November 15, which reached this office on November 24.

According to your letter, over a year ago, you appealed a denial of an unemployment compensation claim. Because you were never informed of the result, you made a request on September 30 under the Freedom of Information Law for "copies of all records relating to [your] appeal." As of the date of your letter to this office, the request had "not been acknowledged, much less met." You have asked that this office "investigate this FOIL violation."

In this regard, the Committee has neither the staff nor the authority to conduct an investigation. Nevertheless, I offer the following comments.

First, it is noted that the Freedom of Information Law pertains to existing records. Section 89(3) of that statute provides in part that an agency need not create a record in response to a request. Therefore, if, for example, no determination has been rendered as yet, the Freedom of Information Law would not apply.

Second, insofar as the records sought exist, it is likely a provision of the Labor Law, rather than the Freedom of Information Law, would govern rights of access to certain of the records. By way of background, 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.

Apparently relevant to the matter is the first ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute, §537 of the Labor Law, entitled "Disclosures prohibited", states in subdivision (1) that:

"[I]nformation acquired from employers or employees pursuant to this article shall be for the exclusive use and information of the commissioner in the discharge of his duties hereunder and shall not be open to the public nor be used in any court in any action or proceeding pending therein unless the commissioner is a party to such action or proceeding, notwithstanding any other provisions of law. Such information insofar as it is material to the making and determination of a claim for benefits shall be available to the parties affected and, in the commissioner's discretion, may be made available to the parties affected in connection with effecting placement."

To the extent that the records sought fall within the scope of §537, they would be confidential, unless they are "material to the making and determination of a claim for benefits" or the Commissioner of Labor asserts his discretionary authority to disclose records for the purpose of effecting placement in a job.

Lastly, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. 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)].

I hope that I have been of assistance.



Robert J. Freeman
Executive Director