IN RE: Rivkah Rochel LANDA (2026)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel disclosure of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6) and for an award of attorney's fees and litigation costs, the petitioner appeals from a judgment of the Supreme Court, Rockland County (David Fried, J.), dated January 6, 2025.  The judgment denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings in accordance herewith.

The petitioner, Rivkah Rochel Landa, submitted a request to the respondent Rockland County pursuant to the Freedom of Information Law (FOIL) (Public Officers Law art 6) seeking disclosure of certain records related to the denial of her application for a pistol permit.  On July 16, 2024, the petitioner's request was granted in part and denied in part.  On July 17, 2024, the petitioner appealed the partial denial of her request.  When the County did not respond by August 5, 2024, the petitioner filed a petition pursuant to CPLR article 78 to compel the County to respond to her appeal and provide the requested records and for an award of attorney's fees and litigation costs pursuant to Public Officers Law § 89(4)(c).

On August 6, 2024, the County contacted the petitioner and informed her that there was an Internet service outage that prevented the County from making a determination on her appeal within the statutory time frame.  The County told the petitioner that “a full decision would be rendered on or before August 12, 2024.”  Accordingly, on August 12, 2024, the County partially granted and partially denied the petitioner's appeal.  Furthermore, the County noted that certain records had been exempted or redacted pursuant to FOIL exemptions.

In September 2024, the respondents answered the petition, claiming, inter alia, that it had turned over all of the records which were subject to disclosure.  The petitioner responded, among other things, that the FOIL exemptions that the County claimed do not apply to her records and sought to compel the County to provide unredacted records.  In a judgment dated January 6, 2025, the Supreme Court denied the petition and, in effect, dismissed the proceeding.  The petitioner appeals.

“In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public” (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929, 930;  see Matter of Meyer v. Town of Hempstead, 237 AD3d 709, 710).  “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 making such record available to the person requesting it, denying such request in writing or furnishing a written acknowledgment of the receipt of such request and a statement of the approximate date ․ when such request will be granted or denied” (Matter of Law Offs. of Cory H. Morris v Suffolk County, 216 AD3d 638, 639–640 [alteration and internal quotation marks omitted];  see Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 AD3d 798, 800).  “Denial 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[b];  see Matter of Snyder v. Nassau County, 199 AD3d 923, 924).

“Any administrative appeal of a denial [must] be undertaken within 30 days of the denial” (Matter of Snyder v. Nassau County, 199 AD3d at 924;  see 21 NYCRR 1401.7[d] ).  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’ ” (Matter of LTTR Home Care, LLC v City of Mount Vernon, 179 AD3d at 800, quoting 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” (Matter of Madden v. Village of Tuxedo Park, 192 AD3d 802, 805;  see 21 NYCRR 1401.7[c] ).  This is known as a “constructive denial” (Matter of Burns v. Cooke, 189 AD3d 826, 827 [internal quotation marks omitted];  see Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 930), 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 (see Matter of Wagner v New York City Dept. of Health & Mental Hygiene, 246 AD3d 748, 750–751).

Furthermore, contrary to the respondents' contention, the proceeding was not rendered academic by the postcommencement disclosure of records in response to the petitioner's requests, since an actual controversy between the parties still exists concerning whether the petitioner's remaining requests are exempt from disclosure (see Matter of Law Offs. of Cory H. Morris v Suffolk County, 216 AD3d at 640–641).

Here, the respondents contend that certain information in the requested records was exempt from disclosure.  However, since such unredacted material is not part of the appellate record, we cannot determine the merits of the petitioner's challenges to the respondents' reliance on exemptions to FOIL disclosure (see Matter of Lane v. Port Wash. Police Dist., 221 AD3d 698, 707;  Matter of Gedan v. Town of Mamaroneck [N.Y.], 170 AD3d 833, 834–835).

Since we cannot determine whether the respondents have met their burden of demonstrating the applicability of the exemptions to the aforementioned material, we must remit the matter to the Supreme Court, Rockland County, to conduct an in camera inspection of representative documents to determine whether the material fell within the asserted FOIL exemptions (see Matter of Lane v. Port Wash. Police Dist., 221 AD3d at 707;  Matter of New York Times Co. v District Attorney of Kings County, 179 AD3d 115, 125;  Matter of Gedan v. Town of Mamaroneck [N.Y.], 170 AD3d at 834–835).

In light of the foregoing, it is premature to determine whether the petitioner “substantially prevailed” so as to warrant an award of attorney's fees and litigation costs pursuant to Public Officers Law § 89(4)(c) (see Matter of Lane v. County of Nassau, 234 AD3d 761, 763;  Matter of Goldstein v Incorporated Vil. of Mamaroneck, 221 AD3d 111, 127;  Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731, 733).

The parties' remaining contentions are without merit.

DILLON, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.