Additional Counsel: Governance, Real Estate, FOIL/OPRA & Article 78

Usually, yes, and often successfully. Under New York's FOIL, "any person denied access to a record may within thirty days appeal in writing such denial" to the agency head or its designee, "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" (Public Officers Law § 89(4)(a)). Many denials don’t survive a well-argued appeal because the agency over-read an exemption or never justified it. If the appeal fails, a person "denied access to a record in an appeal determination ... may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules" (§ 89(4)(b)), and the court "shall assess, against such agency involved, reasonable attorney's fees and other litigation costs" where the requester "has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" (§ 89(4)(c)(ii)). New Jersey OPRA denials follow that statute's own procedures. Bring the denial to the firm promptly.

Not under New York's FOIL. An 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" (Public Officers Law § 89(3)(a)), and "[f]ailure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial" (§ 89(4)(a)). Indefinite silence and serial extensions can therefore amount to a denial, which means you don’t have to keep waiting. The firm converts stalled requests into appeals and, where needed, court proceedings that put the agency on a judge’s clock instead of its own.

"Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217(1)), and courts enforce it strictly. Some statutes set a shorter period; a challenge to a town zoning board of appeals decision, for example, "shall be instituted within thirty days after the filing of a decision of the board in the office of the town clerk" (Town Law § 267-c(1)). Determining when the clock started is itself a legal question full of traps. If you’ve received an adverse agency decision, contact the firm the week it arrives, not month three.

Not before understanding what the summons alleges, what the applicable rules provide, and what a payment or default would mean for your licenses and your record. Bring the summons to a free consultation and Eugene will tell you whether this one is worth contesting.

Often, yes. New York's FOIL allows 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" (Public Officers Law § 87(2)(d)). But you have to assert and substantiate the exemption, ideally starting when you first submit documents: a person submitting information to a state agency "may, at the time of submission, request that the agency except such information from disclosure" (§ 89(5)(a)(1)). If you’ve received notice that a state agency intends to decide whether your exception should continue, the response window is short: the agency must "permit the person who requested the exception, 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" (§ 89(5)(b)(2)), and "[t]he person requesting an exception from disclosure ... shall in all proceedings have the burden of proving entitlement to the exception" (§ 89(5)(e)). Call the firm immediately.