April 29, 1996



Mr. Eric Smokes
Green Haven Correctional Facility
Drawer B
Stormville, NY 12582-0010

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. Smokes:

I have received your letter of April 5, which reached this office on April 12.

You referred to a somewhat recent judicial decision, Baez v. Lai and Galperin (Supreme Court, New York County, December 12, 1994). While I have no familiarity with the decision, you wrote that it involved "whether failure to file timely FOIL appeal could be overcome by a duplicate FOIL request" and indicated that the "answer" by the judge "is alleged to have been 'No'." You have sought my views on the issue.

In this regard, judicial interpretations pertinent to the matter appear to reach somewhat contrary conclusions. In one decision, although a petition was dismissed on the ground that it was not timely commenced, it was held that a petitioner was not barred from seeking the records again under appropriate procedures (Matter of Mitchell, Supreme Court, Nassau County, NYLJ, March 9, 1979). In that situation, if the applicant renewed his or her request and appealed a denial of access, that person would have been able to seek judicial review of the denial within four months of the agency's determination. On the other hand, a proceeding was found to have been time barred when a challenge to a second denial of access was made on the same basis as an initial denial, and there was no change in circumstances [Corbin v. Ward, 160 AD 2d 596 (1990)].

In my view, due to the structure of the Freedom of Information Law and the fact that the grounds for withholding records are frequently based on the effects of disclosure, because those effects may change, an initial request for a record might properly be denied, but a second request might have to be granted due to changes in circumstances. For purposes of illustration, such changes may occur in a variety of situations. For instance, if a matter is currently under investigation, disclosure of records might interfere with the investigation and be withheld under §87(2)(e)(i) of the Freedom of Information Law. However, when the investigation has concluded, the records that were properly withheld in the first instance may become accessible, for disclosure would no longer result in any interference.

From my perspective, if an individual chooses not to initiate an Article 78 proceeding within four months after an agency's denial of his or her appeal, the choice not to do so should not forever preclude that person from seeking the records. There may be changes in circumstances, judicial precedents that could put an issue in a different light, an acquisition of records from other sources that might diminish an agency's capacity to justify a denial, or a change in one's financial ability to initiate a lawsuit. For those reasons, I do not believe that an agency may in every instance deny a second request on the basis of mootness.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director


cc: Gary J. Galperin
Vincent W.S. Lai