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

By Eugene Bondar, Esq.

New York’s Freedom of Information Law starts from a simple premise: government records are public unless a specific exemption says otherwise. The agency doesn’t get to ask why you want the records, and “we’d rather not” is not an exemption. New Jersey’s Open Public Records Act (OPRA) works on the same presumption. 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

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

Agencies must acknowledge a FOIL request promptly and give a reasonable date by which they’ll respond. Indefinite extensions and serial delays can amount to a constructive denial — which 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, and the agency’s appeals officer must respond quickly. The appeal is where you build the record: if the matter goes to court afterward (via an Article 78 proceeding), 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 when the agency had no reasonable basis for the denial.

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. You can and should designate confidential material at submission and be prepared to defend the exemption when the agency notifies you of a request.

We draft and pursue FOIL and OPRA requests, fight denials through appeal and litigation, and protect business information from disclosure. Free consultation, and we respond within one business day.

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

Attorney Advertising. This post is for general informational purposes only and does not constitute legal advice. Deadlines are fact-specific — consult an attorney about your situation.