FOIA Advisor

Q&A: Empire State FOIL Troubles

Q&A (2017)Ryan MulveyComment

Q.  I submitted a FOIL request to a New York state agency at the end of March 2017.  The agency  hasn't completed processing my request, but claims that it cannot locate any responsive records.  I sent the agency copies of some documents related to the communications that I'm requesting.  It still claims it cannot find anything.  What can I do next?

A.  The New York Department of State Committee on Open Government provides extensive guidance on its website about New York State's Freedom of Information Law, including the text of the statute, Frequently Asked Questions, and a helpful summary guide - "Your Right to Know."  As a preliminary matter, you may want to consult these resources to learn about requesting agency records in New York.

You indicated that the agency hasn't issued its determination on your request, so you likely need to file an appeal for failure to respond in a timely manner.  Under New York state law, an agency typically has between five and twenty business days to provide you with a response.  If the agency has, in fact, issued its determination, but claims it cannot locate any responsive records, you still need to file an appeal and explain why you think the agency failed to conduct an adequate search.  Attaching evidence such as the records you already sent to the agency would be helpful in such an appeal.  Following the agency's determination on your appeal, you could then seek judicial relief in state court.  You may also consider continuing to work with the agency to locate the requested records or, alternatively, contacting the Committee on Open Government to request an advisory opinion on your case.