New York Open-Government Coalition: Village Missed Both FOIL Deadlines

Dear David,

Thank you for contacting us.

One housekeeping note first: only one attachment came through, the Clerk’s August 5 acknowledgment letter, and it arrived three times. The two FOIL requests themselves were not attached. That does not change the answer below, but you may want to check that before forwarding the material elsewhere.

Based on the timeline you provided, the Village is now past its deadline on both requests.

The Clerk’s August 5 letter was a proper acknowledgment and gave the Village 20 business days to respond. Once that date passed without records, a denial, or a written explanation for the delay with a new date, you had what is called a constructive denial under Public Officers Law §89(4)(a). By our calculation, that happened around September 2.

The police request is in essentially the same position. The Records Access Officer was copied on August 4, so the Village had notice of the request. An agency has five business days to acknowledge a FOIL request. If it does not, that can also be treated as a denial and appealed.

I would file an appeal now on both requests. There is no reason to wait until Thursday.

You generally have 30 days to appeal a FOIL denial. If the Village has not designated a FOIL appeals officer, send the appeal to the head of the agency. I would send it to the Mayor, Clerk, Village Attorney and Board of Trustees, and copy the Committee on Open Government.

Once the appeal is received, the Village has 10 business days to respond in writing. If it does not, that is another deemed denial and you can consider an Article 78 proceeding.

Our FOIL toolkit can generate the appeal letter and calculate the deadlines for you:
https://www.nyopengov.org/foil-toolkit/

I would also specifically ask for records to be produced on a rolling basis. If some records are ready, there is no reason for the Village to hold them while it continues searching for others. The newsletter emails, complaint file and more recent communications should not have to wait for a search of older material.

Keep the paper trail. Save every email, acknowledgment and response, and keep a simple timeline showing when each request was made and when a response was due. If the Village misses a deadline, put that in writing as well.

If the matter eventually goes to court, it would generally be through an Article 78 proceeding. The statute of limitations is four months from the final administrative determination. Attorney fees can also become an issue when a requester substantially prevails and an agency had no reasonable basis for denying access or failed to comply with FOIL’s response requirements.

You may also want to contact the Committee on Open Government and request an advisory opinion. Their opinions are free, and they carry some weight with municipal attorneys:
https://opengovernment.ny.gov/

As for Thursday’s hearing, FOIL itself cannot stop the Board from voting. There is no requirement that the Board wait until the requested records have been produced.

What you can do is attend and put the issue on the record. State that you requested the complaint file and the records relating to the drafting of the proposal on August 4, that the statutory deadlines have passed, and that the Village still has not produced them. That becomes part of the public record and puts the Board on notice.

On your last question, we are not able to contact the Village on your behalf. The Coalition generally does not intervene directly in individual FOIL disputes between residents and their local governments.

But based on the timeline you sent us, you have a straightforward basis for appealing the Village’s failure to respond.

If you run into a problem with the appeal or the toolkit, feel free to write back.

Best,
Axel

Axel Ebermann
New York Coalition for Open Government
email: axel.ebermann@nyopengov.org
phone: (917) 478-3456