No Response to a FOIL Request- Now What?
If you've made a Freedom of Information Law (FOIL) request in New York State and haven't received a response within the required timeframe, you may be wondering what your next steps should be. How long do you have to wait for a response which does not appear to be forthcoming? What are your options to compel the agency to respond?
When the FOIL law was enacted, the Legislature essentially set forth two forms of denials of FOIL requests, one in writing which conformed with specific notice requirements, and a second which serves as a “constructive denial” of access to the records as a result of the agency’s failure to comply with the time limits set forth in Public Officer § 89(3)(a). Even in circumstances such as when an agency sets a date by which they intend to release the documents, failure to do so can be construed as a constructive denial. ( See Kohler Hausmann v. New York City Police Dep’t, 133 A.D.3d. 437, 437 (N.Y. Sup. Ct. App. Div. 2015) (case where an agency provided an approximate date by which it would provide a response and failed to do so within a reasonable time thereafter may be interpreted as a constructive denial of a FOIL Request).
In cases where a FOIL request has been constructively denied, under New York State law, the requirement for an administrative appeal may be excused and you can proceed directly with an Article 78 proceeding before the New York State Court to compel the production of the requested information. (See Matter of Barrett v Morgenthau, 74 N.Y.2d 907, 909 [1989], Matter of Carnevale v City of Albany, 68 A.D.3d 1290, 1291 [2009], Thomas v. Kane, No. 2022-02164, (N.Y. App. Div. Mar. 31, 2022)).
That being said, there are advantages to pursuing an administrative appeal before resorting to litigation. An administrative appeal allows for a more informal and potentially faster resolution, and it may provide an opportunity for the agency to reconsider its initial decision. Additionally, if you file an administrative appeal with the New York State Committee on Open Government (COOG), they may be able to mediate the dispute or provide guidance.
In summary, while you do not have to administratively appeal a constructive denial of a FOIL request under New York State law, it may be beneficial to do so in certain situations. Ultimately, the decision to pursue an administrative appeal or go directly to court will depend on the specific circumstances of the case and the preferences of the requester. If you're unsure of what your next steps should be, it's always a good idea to consult with a legal professional who is knowledgeable about New York FOIL law.