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FOIL: Freedom of Information Law and Agency Ambiguity

Freedom of Information Law holding that when the agency creates an ambiguity, it is resolved against the agency. In this case, the petition is deemed timely because of the Office of Court Administration (an agency under the law) ambiguity in its response.

New York Freedom of Information Law - this is your right to know, without a reason, what local government does on your behalf - Public Officers Law Sections 84 to 89 codifies this Statutory Civil Right.

While the records law known as "FOIL," Freedom of Information Law, contemplates record production in five (5) or twenty (20) business days, this case takes much longer. In practice, lower courts (Supreme Court, FOIL first judicial review) routinely excuse agency delays for much longer. As the case may be, this creates an ambiguity as to when one can file a Freedom of Information Law lawsuit, an Article 78 Litigation/Article 78 Freedom of Information Law lawsuit.

The lower court here granted respondent's cross-motion to dismiss as untimely the petition challenging the agency's partial denial of a request for records in accordance with the Freedom of Information Law (FOIL), and dismissed the proceeding brought pursuant to CPLR article 78. The First Department, Supreme Court unanimously reversed, on the law, without costs, the motion denied, and the petition reinstated.

The Appellate Court in this FOIL matter notes that "On April 11, 2022, petitioner submitted a FOIL request to the Office of Court Administration (OCA). OCA did not respond to the request within five business days, thus constructively denying the request," an appeal occurred "on May 13, 2022, petitioner sent an email stating the same to which, "on May 27, 2022, OCA constructively denied that appeal by failing to respond within the 10 business days permitted under Public Officers Law § 89(4)(b)." This situation, ironically by the Office of Court Administration, occurs more often than one would think and without any meaningful consequences for what is a blatant violation of the law, the FOIL.

When does the statute of limitations begin to run? When does the FOIL lawsuit need to be filed, timely:

Ordinarily, a FOIL requester's statutory remedy for an untimely response is to deem the response a denial and begin a CPLR article 78 proceeding (Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405, 406 [1st Dept 2013], lv dismissed 21 NY3d 930 [2013], lv denied 22 NY3d 854 [2013]). In that case, the four-month limitations period to challenge OCA's determination would have begun on May 27, 2022, when the statutorily mandated 10-day period to respond to the appeal expired (Matter of Jewish Press, Inc. v New York City Dept of Hous. Preserv. & Dev., 193 AD3d 483, 483 [1st Dept 2021], lv denied 37 NY3d 908 [2021]).

As noted above, the statutory timelines for Freedom of Information Law Requests are routinely violated and the First Department, Supreme Court holds:

However, OCA's ongoing consideration of the request created an ambiguity and the impression of nonfinality regarding its May 27 constructive denial (see Matter of Burch v New York City Health and Hosps. Corp., 118 AD3d 454, 454 [1st Dept 2014]). Twice, on June 16 and August 5, 2022, OCA issued substantive rulings on the FOIL request, stating that petitioner had 30 days to take a written appeal of the determination. OCA's treatment of its May 27 constructive denial as a final agency determination is inconsistent with its statements notifying petitioner that it had opportunities for further administrative appeals (see Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]). Thus, petitioner was justified in pursuing the administrative appeals that OCA appeared to offer rather than commencing what would have been a timely article 78 proceeding.

The agency cannot create a condition where the Freedom of Information Law Statute of Limitations runs and then complain that the Freedom of Information Law deadline for litigation has run. At the same time, there is no such thing as a Freedom of Information Law Appeal remand yet the Courts seem to gloss this over, noting that " according to OCA, had been 'remanded back . . . in response' to petitioner's appeal...." and therefore "Petitioner was justified in its understanding that its request had not been denied with finality on May 27, as it could not have been both conclusively denied and simultaneously 'remanded back . . . in response' to petitioner's June 23, 2022 appeal." Freedom of Information Law continues to allow this ambiguity (e.g. remands and agency delay) until conclusively resolved by the Court of Appeals if not New York Lawmakers for this important civil right, the right to know!

The case is IN THE MATTER OF PORTFOLIO MEDIA, INC., Appellant, v. NEW YORK STATE OFFICE OF COURT ADMINISTRATION, Respondent. Index No. 159592/22, Appeal No. 1874, Case No. 2023-04956 (1st Department March 19, 2024) holding that ["b]ecause OCA created an ambiguity, it is resolved against the agency, and the petition is deemed timely" Id. (citing Matter of Burch v New York City Health and Hosps. Corp., 118 AD3d 454 [1st Dept 2014]; see also Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604, 606 [2d Dept 2001]).

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954)-745-4592 (FLA)

New York State Freedom of Information Law - State/Federal - Freedom of Information Law and Freedom of Information Act | Call 631-450-2515 or E-Mail to arrange for an evaluation of your matter (injury, accident, traffic matter, criminal matter or appellate matter also).


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