Your FOIL Request Was Denied (or Ignored). Here's What to Do Next

By Eugene Bondar, Esq. · Updated September 10, 2026

New York’s Freedom of Information Law starts from a simple premise: government records are public unless a specific exemption says otherwise. Public Officers Law § 87(2) directs that “[e]ach agency shall, in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that may be withheld pursuant to the exceptions of rights of access appearing in this subdivision,” and that “[a] denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized and specific justification for such denial.” “We’d rather not” is not an exemption. And yet anyone who has actually filed a request knows the gap between the law’s promise and the agency’s response.

Most FOIL fights are lost at the drafting stage

The statute’s response clock runs from “the receipt of a written request for a record reasonably described.” Public Officers Law § 89(3)(a). A request for “all documents relating to” a topic invites the response that the request is not reasonably described. The craft is specificity without narrowness: identify the record types, the offices likely to hold them, and the date ranges, and ask for the records you’d want if you knew exactly what was in the filing cabinet. Having spent years inside government, I can usually tell you what that cabinet looks like.

The slow-walk is a denial

The deadlines are statutory. Under Public Officers Law § 89(3)(a), each agency, “within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.” If the agency grants the request but cannot produce “within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part.” Id. And the statute makes delay a denial: “Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.” Public Officers Law § 89(4)(a). That means you can stop waiting and start appealing. Don’t let a request age quietly in a clerk’s inbox for a year.

The appeal is short, and it matters

A FOIL denial, express or constructive, triggers a short administrative appeal window. Under Public Officers Law § 89(4)(a), “any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought.” A person “denied access to a record in an appeal determination” may then “bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules,” and in that proceeding “the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two” of § 87. Public Officers Law § 89(4)(b). The appeal is where you build the record: the arguments you made and the agency’s stated reasons are what the judge reviews. A well-built appeal also positions you to seek attorney’s fees. The court “may assess, against such agency involved, reasonable attorney’s fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, and when the agency failed to respond to a request or appeal within the statutory time,” and “shall assess” such fees and costs where the person “has substantially prevailed and the court finds that the agency had no reasonable basis for denying access.” Public Officers Law § 89(4)(c).

The reverse problem: your records in their hands

If you do business with government (contracts, bids, licenses), your pricing and trade secrets sit in agency files, and your competitors know how to FOIL them. The exemption is Public Officers Law § 87(2)(d), which permits an agency to deny access to records that “are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.” For submissions to a state agency, the statute provides a procedure: a person who “submits any information to any state agency may, at the time of submission, request that the agency except such information from disclosure under paragraph (d) of subdivision two of section eighty-seven,” and “[t]he request for an exception shall be in writing and state the reasons why the information should be excepted from disclosure.” Public Officers Law § 89(5)(a)(1), (2). When a request comes in, the agency must notify the submitter and permit it, “within ten business days of receipt of notification from the agency, to submit a written statement of the necessity for the granting or continuation of such exception.” Public Officers Law § 89(5)(b)(2). Note that for purposes of that procedure, “the term ‘agency’ or ‘state agency’ means only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor.” Public Officers Law § 89(5)(h). For local agencies, designate confidential material at submission anyway and be prepared to defend the § 87(2)(d) exemption when the agency notifies you of a request.

This firm drafts and pursues FOIL and OPRA requests, fights denials through appeal and litigation, and protects business information from disclosure. The consultation is free, and every inquiry is answered within one business day.

Related services: Additional Counsel: FOIL/OPRA & Article 78 · Government Procurement & Public Contracts

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