COVID is not an excuse for FOIL foot-dragging:



NOV 17, 2020 AT 6:00 AM

Anyone who has ever made a request for information under New York’s Freedom of Information Law (FOIL) knows the frustrations of having agencies delay responding timely to the request.

Even in the best of times, city and state agencies typically take their time responding to a request for information. But the law requires expeditiousness. Agencies must make some response within five days of receiving a request. At that point, they can either make the record available or give a date when it will be produced, ideally within 20 days, according to the regulation.

I run a law firm that focuses in part on FOIL litigation, and many of my clients have recently gotten the five-day acknowledgment letter stating that they can expect a response in a year or more! The agencies say vaguely without explanation that the delay is due to COVID-19 but don’t elaborate.

I believe that the agencies are using COVID-19 as a pretext for delaying FOIL responses; they used to be late in responding, and this has just given them a fresh excuse to be even later.

While this would be frustrating and wrong in any case, in light of current circumstances, it is more important than ever to get FOIL requests out in a timely manner, especially to journalists.

For example, the government receives reports from hospitals regarding COVID-19 cases and mortality statistics from each hospital on a regular basis. It would be invaluable for the public to know this information. If someone has to place a family member in a hospital for treatment for COVID-19, knowing which hospitals have a better treatment rate could be crucial.

Yet the way agencies are currently responding, it could be a year or more before such information is ever released to the requester.

The new delays are fundamentally contrary to the legislative intent behind FOIL, as well as the statute and the regulations governing FOIL. From Section 84 of the law: “It is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” The statute states that if circumstances prevent disclosure of the records within 20 business days from the date of the acknowledgment of the receipt of the request, the agency must state in writing the reason for the inability to grant the request within twenty days and a date certain “within a reasonable period” when the request will be granted.

While neither the statute nor the regulations define what is considered a reasonable period, the advisory opinions of the state’s Committee on Open Government give some guidance. One states, “If records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a lengthy delay in disclosure.” Another states that “the law requires that the reason for the delay be explained in writing and that the agency indicate a “date certain,” a self‐imposed deadline, regarding its response to grant the request in whole or in part.

Note that the law specifies that any delay beyond five business days must be reasonably based on attendant facts and circumstances. There is no provision that permits repeated delays.

My advice for those requesting information under FOIL is to vigilantly follow up and appeal delays by government agencies. If an agency delays responding for an unreasonable time after it acknowledged that a request has been received, a request can be considered to be “constructively denied” and can then be appealed.

Government agencies should stop using COVID-19 as an excuse for unreasonably delaying responding to FOIL requests. And those filing such requests should appeal those delays rather than allowing the agencies to get away with them. Considering that many of the delayed requests pertain to the media’s attempt to disseminate COVID-19-related information, government agencies should feel compelled to accelerate the flow of information during a public health crisis, not impede it.

Aron is the founding attorney of Aron Law, PLLC, a boutique law firm in Brooklyn, where he focuses on FOIL litigation and matters pertaining to religious discrimination.