Sec. 2370.8. Procedure to be followed in the event of denial of access to records or denial of exception from disclosure

(a) Records appeals officer shall mean the person designated by the commissioner to decide appeals from denial of access to records or denial of exception from disclosure under the Freedom of Information Law and does not serve as a records appeals officer. The address of the records appeals officer is: Office of Counsel, Building 9, State Campus, Albany, NY 12227. The records appeals officer may designate one or more members of the department to serve as assistant records appeals officer and such assistant or assistants shall have only those functions and responsibilities which are expressly designated to the assistant or assistants by the records appeals officer.

(b) Denial of access to requested records and denial of exception from disclosure by the records access officer shall be in writing stating the reason for the denial and informing the requester of his right to appeal the denial to the records appeals officer. The written notice of denial shall also contain the name, the title, business address, and business telephone number of the records appeals officer. Notice of such denial shall also be given to the agent or authorized representative of the requester, if any.

(c) A person who has been denied access to a requested record by the records access officer shall have the right to appeal the denial to the records appeals officer within the following limitations of time:

(1) If the records access officer responds to the request with a written statement of denial of access to records within the required five business days, said five-day period computed as provided in section 2370.5(c)(1) of this Part, a written statement of appeal must be received by the records appeals officer 30 days from the date of denial of access to the requested record.

(2) In the event that the records access officer fails to produce a record or deny a request for access to records within the estimated time permitted for special circumstances by section 2370.5(c)(2) of this Part, the request shall be deemed denied, and a written statement of appeal must be received by the records appeals officer within 30 days following the 10th business day from the estimated date provided by the records access officer at the time application to access is made.

(3) If the records access officer fails to process a request for records without explanation or reason to the requester thereof within five business days, said five-day period computed as provided in section 2370.5(c)(1) of this Part, the request shall be deemed denied, and a written statement of appeal must be received by the records appeals officer 30 days from the date of the application for access to records.

(d) A person who has been denied an exception from disclosure pursuant to section 2370.7 of this Part shall have the right to appeal the denial by filing a written statement of appeal from the determination of the records access officer with the records appeals officer, within seven business days of receipt of the written notice denying such request.

(e) In order to perfect a proper and timely appeal, the written statement of appeal received by the records appeals officer from the appellant must set forth:

(1) the date and the location of the application for request to access to the department's records, or for request for an exception disclosure;

(2) the record, identified with particularity, to which the requester was denied access, or was denied an exception; and

(3) the name and return address of the requester.

(f) The records appeals officer shall, within 10 business days, excluding the day of the proper commencement of the appeal, determine the right of access to records, or, within seven business days, excluding the day of the proper commencement of the appeal, determine the right of exception from disclosure. Where he decides the denial of access was improper, he shall order the records access officer to allow the requester access to such records. Where he decides the denial of exemption from disclosure was improper, he shall order the records access officer to except such records from disclosure. Where he decides the denial of access was correct, he shall state the reason or reasons therefor and mail a copy of his decision to the appellant on or before the aforesaid period by registered or certified mail of the United States Postal Service and to his agent or authorized representative by ordinary mail. In addition, he shall immediately, upon receipt, forward a copy of such appeal to the Committee on Open Government. He shall also forward to such committee a copy of the ensuing decision.

(g) A final denial of access or of exception from disclosure to a requested record by the records appeals officer is subject to court review as provided for under the Freedom of Information Law.