Appealing the Village’s Failure to Answer Both August 4 FOIL Requests
This consolidated administrative appeal was filed with the Village on September 15, 2026. It addresses the Village administrative request and the Police Department request and asks for reversal of both constructive denials, immediate rolling production, and a written determination within 10 business days.
Dear FOIL Appeals Officer, Mayor Citrin, and Members of the Board of Trustees:
Pursuant to Public Officers Law §89(4)(a), we appeal the Village of Tuxedo Park’s constructive denials of two Freedom of Information Law requests submitted on August 4, 2026.
This consolidated appeal concerns: (1) the Village administrative request seeking records about the proposed photography/filming law, Chapter 51, comparable photography uses, the boathouse property at 61 Turtle Point Road, and related assessment records; and (2) the Police Department request seeking complaints, calls for service, communications, and enforcement records concerning private-property photography and filming.
Village administrative request
The administrative request was sent on August 4, 2026 to Rachel Guido in her capacity as Village Clerk/Treasurer and Records Access Officer. In a letter dated August 5, Ms. Guido acknowledged receipt and stated that the request was anticipated to be granted or denied, in whole or in part, within 20 business days of that letter.
That stated period expired on or about September 2, 2026. As of the date of this appeal, we have received no responsive records, written denial, written explanation for an additional delay, or new date certain for production. The Village therefore failed to conform to Public Officers Law §89(3)(a), which constitutes a denial under §89(4)(a).
Police Department request
The Police Department request was sent on August 4, 2026 to Chief Allen Faust at police@tuxedopark-ny.gov, with the Village Records Access Officer copied. The Village therefore had written notice of the request. No acknowledgment, production, written denial, or approximate response date has been received.
Public Officers Law §89(3)(a) requires an agency, within five business days after receipt of a reasonably described written request, to make the record available, deny the request in writing, or furnish a written acknowledgment with a reasonable approximate date for granting or denying the request. Failure to comply constitutes a constructive denial.
This appeal is being submitted promptly after we received confirmation that the continuing nonresponse may be appealed. To the extent the Village contends that an appeal from the Police Department’s nonresponse should have been filed earlier, we request that it accept this appeal as timely because no written denial, acknowledgment, appeal instructions, or identification of an appeals officer was provided, and the nonresponse remains ongoing.
Independent open-government review
On September 15, 2026, Axel Ebermann of the New York Coalition for Open Government reviewed the timeline and wrote:
“Based on the timeline you provided, the Village is now past its deadline on both requests.”
“I would file an appeal now on both requests. There is no reason to wait until Thursday.”
Mr. Ebermann further wrote: “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.” He also advised requesting rolling production so that readily available records are not withheld while older material is being located. The Coalition’s response is advisory and is included below as Exhibit D.
Request to adjourn the September 17 hearing
Because the outstanding records concern the origin, factual basis, drafting, scope, and intended enforcement of the proposed law, we respectfully request that the Board adjourn the September 17 public hearing and defer any vote or other action until the Village has produced the responsive records on a rolling basis and residents have had a reasonable opportunity to review them.
If the Board proceeds on September 17, please include this appeal and all supporting exhibits in the public-hearing and legislative record and keep the hearing open until the overdue records have been produced and reviewed. We recognize that FOIL itself does not automatically require the Board to postpone the hearing; this request is made to protect an informed, transparent, and fair public process.
Relief requested
We respectfully request that the appeal recipient:
- Accept this consolidated appeal and reverse both constructive denials;
- Direct immediate production of all readily available responsive records and require rolling production as additional records are located and reviewed;
- Adjourn the September 17 public hearing and defer any vote or other action until the responsive records have been produced and residents have had a reasonable opportunity to review them, or, at minimum, keep the hearing open;
- Identify the specific statutory basis for any withholding or redaction and disclose all reasonably segregable nonexempt portions;
- Certify when a requested record is not possessed or cannot be located after diligent search;
- Identify a date certain for completing each production and the official responsible for each request;
- Preserve all responsive records, communications, attachments, photographs, videos, electronically stored information, and associated metadata;
- Immediately forward this appeal and the ensuing determination to the Committee on Open Government as required by §89(4)(a); and
- Issue a written appeal determination within 10 business days after receipt.
Please confirm receipt of this appeal and identify the person or body responsible for deciding it. This appeal does not narrow either underlying request, waive any right to challenge a final or constructive denial, or consent to further delay.
Respectfully,
David McFadden and Robin McFadden
28 Pepperidge Road
Tuxedo Park, New York 10987
mac4tux@gmail.com
(917) 576-2484
Appeal exhibits in chronological order
Sources for the governing FOIL rules: New York Public Officers Law §89 and the Committee on Open Government’s explanation of response time limits. Because this matter may proceed to an Article 78 proceeding, legal counsel should review the appeal and all limitations-period calculations before filing.