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WHEN THE COUNTY FAILED TO RESPOND TO PETITIONER’S APPEAL OF THE DENIAL OF A FOIL REQUEST WITHIN TEN DAYS, THE COUNTY WAS DEEMED TO HAVE “CONSTRUCTIVELY DENIED” THE APPEAL; AT THAT POINT PETITIONER HAD EXHAUSTED ADMINISTRATIVE REMEDIES AND WAS FREE TO COMMENCE A CPLR ARTICLE 78 PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the county’s failure to respond to a FOIL request within five days and the county’ s failure to respond to a FOIL administrative appeal within ten days constitute constructive denials of the FOIL request. Therefore, after the county’s failure to timely respond to the administrative appeal, the petitioner had exhausted administrative remedies and was free to bring a CPLR article 78 proceeding:​

“Any administrative appeal of a denial [must] be undertaken within 30 days of the denial” … . Within 10 business days of such an appeal, the agency must “‘fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought'” (… Public Officers Law § 89[4][a]; see 21 NYCRR 1401.5[c]; 1401.7[f]). “[A] FOIL request is deemed denied if there is no response to the request within five business days” … . This is known as a “constructive denial” …, and an agency’s failure to respond to an administrative appeal within the 10-day limit also constitutes a constructive denial (see 21 NYCRR 1401.7[f]). As there is no dispute that the County did not respond within the 10-day limit, its failure to respond acted as a constructive denial of the petitioner’s appeal, and therefore, the respondents’ argument that the petitioner failed to exhaust the available administrative remedies before commencing a CPLR article 78 proceeding is without merit … . Matter of Landa v Rockland County, 2026 NY Slip Op 05398, Second Dept 9-23-26

Practice Point: The failure of a government agency to respond to a FOIL request within five days and to a FOIL administrative appeal within ten days are deemed “constructive denials.”​

 

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