N.Y. Comp. Codes R. & Regs. tit. 9 § 550.8

Current through Register Vol. 46, No. 50, December 11, 2024

Section 550.8 - Procedure to be followed in the event of denial of access to records or denial of exception from disclosure

(a) The executive deputy commissioner hereby designates the Counsel in the Office of Counsel of the office as "records appeals officer" to decide appeals from denial of access to records or denial of exception from disclosure under the Freedom of Information Law. The ad dress of the records appeals officer is: Counsel, Office of Counsel, New York State Office of Information Technology Services, State Capitol/Empire State Plaza, P.O. Box 2062, Albany, NY 12220. The records appeals officer may designate one or more members of the office, as he or she deems necessary, to serve as assistant records appeals officer and such assistant or assistants shall have only those functions and responsibilities which are expressly designated to the assistant or assistants by the records appeals officer.

(b) Denial of access to requested records and denial of exception from disclosure by the records access officer shall be in writing, stating the reason for the denial and informing the requester of his or her right to appeal the denial to the records appeals officer. The written notice of denial shall also contain the name, title, business address, and business telephone number of the records appeals officer. Notice of such denial shall also be given to the agent or authorized representative of the requester, if any.

(c) A person who has been denied access to a requested record by the records access officer shall have the right to appeal the denial to the records appeals officer within the following limitations of time:

(1) If the records access officer responds to the request with a written statement of denial of access to records within the required five business days, said five-day period computed as provided in section 550.5(c)(1) of this Part, or by the approximate date identified in the response acknowledging receipt of the request, a written statement of appeal must be received by the records appeals officer 30 days from the date of denial of access to the requested record.

(2) In the event that the records access officer fails to produce a record or deny a request for access to records by the approximate date identified in the response acknowledging receipt of the request, the request shall be deemed denied, and a written statement of appeal must be received by the records appeals officer within 30 days following the 10th business day from the approximate date provided by the records access officer at the time application for access is made.

(3) If the records access officer fails to process a request for records without explanation or reason to the requester thereof within five business days, said five-day period computed as provided in section 550.5(c)(1) of this Part, the request shall be deemed denied, and a written statement of appeal must be received by the records appeals officer 30 days from the date of the application for access to records.

(d) A person who has been denied an exception from disclosure pursuant to section 550.7 of this Part shall have the right to appeal the denial by filing a written statement of appeal from the determination of the records access officer with the records appeals officer, within seven business days of receipt of the written notice denying such request.

(e) In order to perfect a proper and timely appeal, the written statement of appeal received by the records appeals officer from the appellant must set forth:

(1) the date and the location of the application for request to access to the office's records, or for request for an exception disclosure;

(2) the record, identified with particularity, to which the requester was denied access, or was denied an exception; and

(3) the name and return address of the requester.

(f) The records appeals officer shall, within 10 business days, excluding the day of the proper commencement of the appeal, determine the right of access to records, or, within seven business days, excluding the day of the proper commencement of the appeal, determine the right of exception from disclosure. Where he or she decides the denial of access was improper, he or she shall order the records access officer to allow the requester access to such records. Where he or she decides the denial of exemption from disclosure was improper, he or she shall order the records access officer to except such records from disclosure. Where he or she decides the denial of access was correct, he or she shall state the reason or reasons therefor and mail a copy of his or her decision to the appellant on or before the aforesaid period by registered or certified mail of the United States Postal Service and to his or her agent or authorized representative, if any, by ordinary mail. In addition, the records appeals officer shall immediately, upon receipt, forward a copy of such appeal to the Committee on Open Government. He or she shall also forward to such committee a copy of the ensuing decision.

(g) A final denial of access or of exception from disclosure to a requested record by the records appeals officer is subject to court review as provided under section 89 of the Freedom of Information Law.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 550.8

Amended New York State Register April 4, 2018/Volume XL, Issue 14, eff. 4/4/2018