THE COUNTY’S FAILURE TO RESPOND TO PETITIONER’S FOIL REQUEST WITHIN FIVE DAYS IS A DENIAL; THE COUNTY’S FAILURE TO NOTIFY PETITIONER OF THE AVAILABILITY OF AN ADMINISTRATIVE REVIEW OF THE DENIAL EXCUSED PETITIONER’S FAILURE TO SEEK ADMINSTRATIVE REVIEW; PETITIONER’S ARTICLE 78 ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking court review of the denial of a FOIL request should not have been dismissed for failure to exhaust administrative remedies. Here the county did not respond to the FOIL request within five days, which, under the controlling regulations, is a denial. Petitioner, after an additional 30 days, filed the Article 78 petition without pursuing an administrative appeal. The Second Department held that the county’s failure to notify petitioner of the availability of administrative review justified petitioner’s failure to seek it before going to court, even though petitioner was aware of the availability of the administrative review process:

“The statutory time to respond to a FOIL request for records is ‘within five business days of the receipt of a written request,’ and the agency should respond by ‘mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date . . . when such request will be granted or denied'” … . 21 NYCRR 1401.7(b) states, in relevant part, that “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number” … . “21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days” … . “[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial” … . A petitioner who does not “appeal[ ] the denial in writing” will generally be deemed to have “failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief” … .

Here, the Supreme Court improperly determined that dismissal was warranted based on the petitioner’s failure to exhaust its administrative remedies. Where, as here, an agency fails to “inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion is excused” … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 02312, Second Dept 5-3-23

Practice Point: If the agency which receives a FOIL request does not respond within five days, the request can be deemed denied. If the agency does not notify the party making the request of the availability of administrative review of the denial, failure to seek administrative review is excused, even where, as here, the petitioner was aware of the administrative review process.