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Article 78 Proceeding was premature – although significantly delayed, no final determination was iss

“The application by pro se petitioner for an order pursuant to CPLR Article 78, compelling respondents to provide petitioner with records responsive to his September 16, 2013 request in accordance with the Freedom of Information Law ("FOIL") as codified in Public Officers Law ("POL") §84, et seq., is denied and the proceeding is dismissed without costs and disbursements to either party.” Petitioner sent a letter to the Freedom of Information Administrator of the Port Authority and the Administrator stated that the petitioner would be notified within twenty days as to a determination of petitioner's request. The Administrator sent letters on October 25, 2013, November 7, 2013, December 26, 2013, January 29, 2014, February 6, 2014, February 21, 2014, March 19, 2014, April 8, 2014 and May 7, 2014 to notify petitioner that additional time was needed. Petitioner seeks to compel respondents to provide the records as originally requested.

Holding: "In the case at bar, petitioner commenced the instant proceeding prior to a final determination by the Port Authority. Where the Port Authority has yet to either grant or deny a FOIL request due to ongoing efforts to determine the accessibility of records, there is no constructive denial.” See Matter of Advocates for Children of New York. Inc. v. New York City Dept. of Educ., 101 A.D.3d 445 (1st Dept. 2012).

Law: [Pursuant to POL §84, "the FOIL requester's statutory remedy for an untimely response or ruling is to deem the response a denial and commence a CPLR Article 78 proceeding for the review of such denial." New York Times Co. v. City of New York Police Dept, 103 A.D.3d 405, 406 (1st Dept. 2013). However, POL §89(3) "mandates no time period for denying or granting a FOIL request, and rules and regulation purporting to establish an absolute time period have been held invalid on the grounds that they were inconsistent with the statute." Id. at 407. Moreover, CPLR §7801(1) provides that a proceeding under Article 78, "shall not be used to challenge a determination which is not final or can be adequately reviewed by appeal to a court or to some other body or officer…." Thus, prior to any determination of the FOIL request by the Port Authority, litigation is premature. See Tellier v. New York City Police Dept., 267 A.D.2d 9 (1st Dept. 1999).]

Conclusion: The Court found that no final determination was made and, therefore, the application was premature – denied.

The case is Matter of Gianella v. The Port Authority of N.Y., 10060514, NYLJ 1202672996360, at 1 (Sup., NY, Decided September 19, 2014).

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