FOIL Denials Can be Challenged in Court

A denial of access to records under New York’s FOIL can be challenged in court — and the individual seeking records may be awarded attorney’s fees from the government if they prevail.

Before the challenge can go to court, the requesting party must proceed through the agency’s procedures including appeals in a timely manner. It is important to know the deadlines in which to act.

The Date of a FOIL Denial

An appeal within the agency from a written denial of a FOIL request must be made within thirty days of the denial. Thus it is critical to know the date of a FOIL denial. If the denial is in writing, the date on the letter is the date of the denial. If the agency simply does not respond to your records request, however, it is deemed denied without a written denial letter. In that case, a determination of the date of the denial is based on the date when the agency should have responded. In the first instance, the agency has five days from the receipt of a FOIL request to produce the record or to provide a letter stating a time within which it will be able to provide the records that have been requested. Thus,, if the agency does not respond at all – then the denial date is five days from the date of the initial request. If the agency provides a future date upon which it will provide the records but then does not, then the FOIL denial date the date that the agency said it would produce the record but did not.

Time for Agency to Decide FOIL Appeal

Upon receipt of the appeal, the agency head, governing body or appeals officer has ten business days to fully explain in writing the reasons for further denial of access or to provide access to the records. Copies of all appeals and the determinations thereon must be sent by the agency to the Committee on Open Government. A failure to determine an appeal within then business days of its receipt is considered a denial of the appeal.

Court Challenge to a Final Agency FOIL Denial

A final agency denial of a FOIL request can be challenged in Court under Article 78 of the New York State Civil Practice Law and Rules. The deadline to the court challenge is very short and it is critical to act as soon as possible. Failure to act within the required time will result in a challenge being dismissed.

Attorney’s Fees Can Be Recovered

The Freedom of Information Law permits a court, in its discretion, to award reasonable attorney’s fees to a person denied access to records. To do so, a court must find that the person denied access “substantially prevailed”, and either that the agency had no reasonable basis for denying access or that it failed to comply with the time limits for responding to a request or an appeal.