June 6, 1996



Mr. Mark Bliss
Sullivan Correctional Facility
P.O. Box AG
Fallsburg, NY 12733-0116

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. Bliss:

I have received your letter of May 20. You referred to earlier correspondence in which it was advised that you appeal a constructive denial of a request for records directed to the New York City Police Department. Following your appeal dated March 25, you received a reply dated May 9 and postmarked May 17 stating that:

"This is in response to your appeal from the constructive denial by the Records Access Officer of records requested from the New York City Police Department.

"The Records Access Officer's constructive denial of your request for records pursuant to the Freedom of Information Law is overturned. I have directed that a response be forwarded to you as soon as possible.

"You may seek judicial review of this determination by commencing an Article 78 proceeding within four months of the date of this decision."

You have asked whether the response indicates that your request has been denied and whether you can initiate an Article 78 proceeding despite the Department's failure to determine the appeal within the time prescribed by the Freedom of Information Law.

In this regard, on the basis of the response, I cannot ascertain whether the records that you requested will be granted or denied in whole or in part. I believe, however, that in accordance with §89(4)(a) of the Freedom of Information Law, the Department in determining an appeal is required either to grant access to the records or fully explain the reasons for further denial. The response that you received did neither but rather indicates that you will receive an additional reply, presumably granting or denying access.

Second, if the Department determines to deny access, I believe that you would have the right to initiate a proceeding under Article 78 of the Civil Practice Law and Rules. As I understand Article 78, you may initiate a proceeding within four months of an agency's final determination.

This office does not maintain materials pertaining to the means by which Article 78 proceedings may be initiated. It is suggested that your facility librarian might be able to acquire the information from other sources on your behalf.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director