On August 11 I sent a FOIL request to the police department that serves my village and a neighboring one under a shared-services arrangement. I asked for records on its automated license plate reader (ALPR) cameras: any whitelist of plates or vehicles exempted from tracking, audit and usage logs since January 1, vendor contracts and grant paperwork, and communications about installing and running the cameras.
I followed up on August 18 after hearing nothing. On August 19 the police chief wrote back that they had received it, that I was one of many asking for this information, and that they were waiting on a report to clear with the FOIL officer and would have something out “hopefully soon.” No date was given.
On September 27 I filed a FOIL appeal with my village under Public Officers Law § 89(4)(a), on the grounds that an acknowledgment with no date is a constructive denial. The next day the deputy village clerk sent me an acknowledgment letter under § 89(3), saying this was the first FOIL request the village had received on the matter and setting a response date a month out.
I am not filing a new request. Treating my appeal as one resets a clock that started weeks ago. Is this local clerks using village boundaries to get around FOIL timelines, and what should I do?
Thank you for documenting every step so carefully. That paper trail is what makes the rest of this work.
The August 19 acknowledgment looks like a constructive denial. Public Officers Law § 89(3)(a) requires a date, reasonable under the circumstances, by which the request will be granted or denied. “Hopefully soon” isn’t one, and the Committee on Open Government’s regulations (21 NYCRR 1401.5(e)) treat that as an appealable denial. You were right to appeal.
An appeal is not a new request. Under § 89(4)(a), the agency has ten business days from your appeal to decide it. Calling it a “new matter” and setting a fresh response date a month out has no basis in the statute. If the ten days pass with no decision, that’s a second constructive denial and you can go directly to an Article 78 proceeding.
The shared-department structure matters in one respect: it decides who the appeals officer is. Whichever village holds the records has to answer on the statutory timeline, and if they think the other village is the custodian, they have to say so in writing. Check the intermunicipal agreement between the two villages to see which one actually employs the department. If it isn’t yours, file the appeal there too.
Three things worth doing. Send the clerk a short written note, copying the police chief, stating that your September filing was an appeal under § 89(4)(a), not a new request, and asking who the appeals officer is and when a decision will issue. Request a written advisory opinion from the Committee on Open Government at the Department of State; that often gets records moving without a lawsuit. And keep your paper trail intact, since attorney’s fees under § 89(4)(c) become available where an agency had no reasonable basis for withholding.
Keep at it. Cases like yours are why the law needs fixing.
