January 12, 1996
Mr. William Almodovar
Stormville, NY 12582
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. Almodovar:
I have received your recent letter, as well as the materials attached to it. You have raised questions concerning the exhaustion of administrative remedies under the Freedom of Information Law, a denial of access to computer codes and your contention that an agency is responsible for "reasonably describing the withheld information."
In this regard, although there is little case law concerning the exhaustion of administrative remedies in the kind of situation that you described, 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)].
I point out that the lower court in Floyd determined that the records should have been disclosed by virtue of the agency's failure to respond, but that the Appellate Division modified that aspect of the decision. While the Appellate Division confirmed that a failure to respond to an appeal within the statutory time constitutes a constructive denial of access, thereby resulting in the exhaustion of one's administrative remedies and the right to initiate an Article 78 proceeding, it was also found that such failure did not automatically require that the agency disclose the requested records. Specifically, in rejecting the Supreme Court's automatic grant of access, the Appellate Division found that:
"We think this is too rigid an interpretation of the statute. As a textual matter, if the effect of failure to comply were as Special Term interpreted it, it would have been more appropriate for the statute to say that if (A) the agency did not furnish the explanation in writing then (B) the agency must provide access to the material sought. Instead, however, the statute is phrased in the alternative form of requiring the agency within seven days to do either (A) or (B). As a textual matter there would appear to be no particular reason to say that failure to do either (A) or (B) would require the agency to do (B) rather than (A), which is the choice Special Term made.
"More important, as a policy matter, we do not think the statute should be interpreted so rigidly to require the result directed by Special Term. We recognize the importance of prompt response by the agency to the request for information. Such responsiveness and accountability are the very point of FOIL. But the same statute also expresses the public policy that some kinds of material should be exempt from disclosure. Both policies must be considered. To say that even the slightest default in timely explanation destroys the exemption seems to us too draconian. We think the seven-day limitation should be read as directory rather than mandatory, and that the consequence of failure by the agency to comply with the seven-day limitation is that the applicant will be deemed to have exhausted his administrative remedies and will be entitled to seek his judicial remedy" (id., 87 AD 2d 388, 390).
I note that at the time of the decision, the statutory time for responding to an appeal was seven days; it is now ten business days.
Next, as you are aware, §87(2)(i) permits an agency to deny access to "computer access codes." In my view, there is a distinction between computer codes and computer access codes. The former might merely serve as a non-verbal indication of items of information. The latter, on the other hand, is used to gain access to information stored in a computer. In my view, the intent of §87(2)(i) is to enable an agency to withhold computer access codes that would enable individuals to gain unauthorized access to data stored within a computer. If the items in question are indeed computer access codes as described in the preceding sentence, I believe that a denial of access would be justified.
Lastly, I am unaware of any provision of the Freedom of Information Law or judicial decision that would require that a denial at the agency level identify every record withheld or a description of the reason for withholding each document be given. Such a requirement has been imposed under the federal Freedom of Information Act, which may involve the preparation of a so-called "Vaughn index" [see Vaughn v. Rosen, 484 F.2D 820 (1973)]. Such an index provides an analysis of documents withheld by an agency as a means of justifying a denial and insuring that the burden of proof remains on the agency. Again, I am unaware of any decision involving the New York Freedom of Information Law that requires the preparation of a similar index. Further, one decision suggests the preparation of that kind of analysis might in some instances subvert the purpose for which exemptions are claimed. In that decision, an inmate requested records referring to him as a member of organized crime or an escape risk. In affirming a denial by a lower court, the Appellate Division found that:
"All of these documents were inter-agency or intra-agency materials exempted under Public Officers Law section 87(2)(g) and some were materials the disclosure of which could endanger the lives or safety of certain individuals, and thus were exempted under Public Officers Law section 87(2)(f). The failure of the respondents and the Supreme Court, Westchester County, to disclose the underlying facts contained in these documents so as to establish that they did not fall 'squarely within the ambit of [the] statutory exemptions' (Matter of Farbman & Sons v. New York City Health and Hosps. Corp., 62 NY 2d 75, 83; Matter of Fink v. Lefkowitz, 47 NY 2d 567, 571), did not constitute error. To make such disclosure would effectively subvert the purpose of these statutory exemptions which is to preserve the confidentiality of this information" [Nalo v. Sullivan, 125 AD 2d 311, 312 (1987)].
I hope that I have been of some assistance.
Robert J. Freeman
cc: Ann Horowitz, Counsel