A guide for New York State and local agencies

New York's Freedom of Information Law: five business days, the twenty-day rule, and how a missed date becomes a denial

What Public Officers Law Article 6 requires of a records access officer — the three permitted responses, the approximate-date and date-certain mechanics, constructive denial, fees, appeals, Article 78, and the attorney-fee rules that price a missed clock.

By Steve Goodyear, founder of Realizer Services Published September 4, 2026

New York's Freedom of Information Law is short on ceremony and long on dates. It gives an agency five business days to do one of three things, attaches a second marker at twenty business days, requires a “date certain” when that marker will be missed, and then declares that failing any of it “shall constitute a denial.” That last phrase — the constructive denial — is what makes FOIL operationally demanding. A request nobody has refused can be in the appeal stage because a letter went out a day late or without a date in it, and once a court is involved, a missed statutory time is one of the two grounds on which attorney's fees can be assessed against the agency.

This guide covers Article 6 of the Public Officers Law and the Committee on Open Government's regulations at 21 NYCRR Part 1401 that supply the mechanics: who the law binds and what a request needs, the five-business-day response and how days are counted, the twenty-business-day rule, constructive denial, exemptions and the denial letter, fees, appeals and Article 78, and the Committee's advisory role. Citations link to the official statute text. This is general information, not legal advice.

Who FOIL binds, and what a request needs

FOIL is Article 6 of the Public Officers Law, sections 84 through 90. Section 84 sets the tone — “government is the public's business” — and section 86 makes an “agency” any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office, or other governmental entity performing a governmental or proprietary function, other than the judiciary or the State Legislature (which has its own rules in section 88). A “record” is any information kept, held, filed, produced, or reproduced by, with, or for an agency, in any physical form whatsoever.

The clock in section 89(3)(a) starts on receipt of “a written request for a record reasonably described.” Agencies with reasonable means must accept requests by email and respond by email (section 89(3)(b)), and every state agency with a website must provide for online submission (section 89(3)(c)). The Committee's regulation 21 NYCRR 1401.2 requires the agency head or governing body to designate one or more records access officers by name or job title, responsible for maintaining the subject-matter list, helping requesters identify and reasonably describe records, contacting requesters when a request is voluminous to narrow it, and, on locating records, either making them promptly available or denying access in writing with reasons. Two standing duties under section 87(3) feed that work: a record of each member's final vote in agency proceedings and a list of the name, office address, title, and salary of every officer and employee, plus a reasonably detailed current subject-matter list of all records, updated annually with the date shown (regulation 1401.6). Regulation 1401.9 adds a public notice of where records can be inspected, who the records access officers are, and where an appeal goes. Each is a document a requester's lawyer checks first, because each is easy to find and easy to get wrong.

The five-business-day response (section 89(3)(a))

Within five business days of receiving a written request for a record reasonably described, the agency must do one of three things:

Make the record available.
Deny the request in writing.
Furnish a written acknowledgement of receipt together with “a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.”

Regulation 1401.5(c)(1) adds a fourth response the statute implies: telling the requester that the request does not reasonably describe the records, with direction that would let them fix it. What is not on the list is silence, and neither is an acknowledgement without a date. Regulation 1401.5(d) names what a reasonable approximate date depends on — the volume of the request, the ease or difficulty of locating, retrieving, or generating the records, the complexity of the request, the need to review records to decide what must be disclosed, and the number of requests the agency has received. Write those down when you set the date; they are the inputs a court will use to decide whether the date was reasonable.

The same subdivision closes two doors. An agency may not deny a request “on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing” if it could engage an outside professional service and recover the cost under section 87(1)(c). And when an agency can retrieve or extract a record or data from a computer storage system with reasonable effort, it must, and must do so electronically whenever that takes less employee time than manual retrieval or redaction; programming needed to retrieve a stored record is expressly “not … the preparation or creation of a new record.”

Counting business days

FOIL counts business days, so weekends and public holidays on which the agency is closed do not consume the clock. The statute does not say whether the day of receipt counts; the conservative practice is to treat receipt as day zero and the next business day as day one, and to log the receipt date the moment a request arrives in any inbox, because the five days run from the agency's receipt, not from the records access officer's first sight of it. A request received on a Monday is owed a response by close of business the following Monday; a holiday in between pushes it to Tuesday.

The twenty-business-day rule and the date certain

The approximate date is bounded. Regulation 1401.5(c)(3) says it “shall not be more than twenty business days after the date of the acknowledgment,” unless the agency already knows circumstances prevent disclosure within that time, in which case the acknowledgement itself must state the reason and a date certain. The statute then adds a second obligation for the common case where an agency intended to meet the twenty days and cannot: if the agency “determines to grant a request in whole or in part, and if circumstances prevent disclosure … 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.”

Three details trip up agencies. The twenty days run from the acknowledgement, not from receipt. The obligation is triggered by a decision to grant; a request still under review is governed by the approximate date. And “date certain” means a date, not a range or a promise to be in touch. A calendar entry at day fifteen after each acknowledgement, prompting the date-certain letter where production is slipping, is the cheapest compliance control in FOIL.

Constructive denial

Section 89(4)(a) ends with the sentence that gives every date above its teeth: “Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.” Regulation 1401.5(e) lists the failures: not granting, denying, or acknowledging within five business days; acknowledging without an approximate date; giving an unreasonable approximate date; not responding within a reasonable time after the approximate date or within twenty business days of the acknowledgement; deciding to grant within twenty business days and then not doing so without a written reason and date certain; and giving a date certain that is itself unreasonable. Regulation 1401.7(c) repeats that a failure to respond as required “shall be deemed a denial of access.” A lapsed clock is therefore not a delay the requester must tolerate; it is a decision they may appeal, and it is a fact a court will later weigh, because section 89(4)(c)(i) lets a court assess attorney's fees where the requester substantially prevailed and “the agency failed to respond to a request or appeal within the statutory time.” Timeliness is not a soft metric in New York. It is one of the two statutory fee triggers.

Exemptions and the denial letter

FOIL presumes access and permits withholding only under the categories in section 87(2). The most-used are records that are specifically exempted by state or federal statute (a); would constitute an unwarranted invasion of personal privacy (b); would impair contract awards or collective bargaining negotiations (c); are trade secrets or commercial information whose disclosure would cause competitive injury (d); are compiled for law enforcement purposes and would cause one of the listed harms (e); could endanger life or safety (f); are inter-agency or intra-agency materials, except statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, and external audits (g); are examination questions before the exam (h); or would jeopardize information technology security (i). Section 89(2)(b) gives examples of an unwarranted invasion of privacy — employment, medical, and credit histories of applicants, patient records, lists of names and addresses for solicitation, personal information reported in confidence — and section 89(2)(c) says disclosure is not unwarranted when identifying details are deleted, the subject consents in writing, or a person seeks records about themselves on proof of identity.

A denial must be in writing (section 89(3)(a)). Regulation 1401.7(b) sets its contents: the reason, and notice of the right to appeal to the person or body designated to hear appeals, identified by name, title, business address, and business telephone number; the records access officer may not be the appeals officer. Where records do not exist, section 89(3)(a) requires the agency, on request, to certify that it does not have possession of the record or that it “cannot be found after diligent search.” Because section 89(4)(b) puts the burden of proving an exemption on the agency in any Article 78 proceeding, the denial letter and the redaction log behind it should be written to carry that burden: which paragraph, applied to which records, for what stated reason.

Fees

Paper copies up to nine by fourteen inches may be charged at not more than twenty-five cents per page; anything else at the actual cost of reproduction (section 87(1)(b)(iii)). Under section 87(1)(c), “actual cost” is a closed list: an amount equal to the hourly salary of the lowest-paid agency employee with the skill needed to prepare the copy; the actual cost of storage devices or media supplied; and the actual cost of an outside professional service, but only where the agency's own information technology equipment is inadequate. Preparing a copy “shall not include search time or administrative costs,” no employee-time charge may be made unless at least two hours are needed, and in that case the requester must be told the estimated cost in advance. Regulation 1401.8 confirms there is no fee for inspecting records that need no redaction, for search, for review, or for certification; that payment may be required in advance; and that fees may be waived in whole or in part. Section 87(5) adds that records must be provided on the medium requested if the agency can reasonably make the copy, and that records in computer format “shall not be encrypted.”

Appeals, Article 78, and attorney's fees

Under section 89(4)(a), any person denied access — actually or constructively — may appeal in writing within thirty days to the head, chief executive, or governing body of the entity, or its designee, who must within ten business days of receipt either provide access or “fully explain in writing to the person requesting the record the reasons for further denial.” The agency must also “immediately forward” to the Committee on Open Government a copy of the appeal when received and the ensuing determination. Regulation 1401.7(e) starts the ten days when the agency receives a written appeal identifying the date and location of the request, the records denied, and the appellant's name and return address; regulation 1401.7(f) makes a failure to decide in ten business days a denial of the appeal.

A person denied on appeal may bring a proceeding under Article 78 of the Civil Practice Law and Rules (section 89(4)(b)), where “the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two.” The fee rule in section 89(4)(c) has two prongs. The court may assess reasonable attorney's fees and litigation costs against the agency where the requester substantially prevailed and the agency failed to respond to the request or appeal within the statutory time. The court shall assess them where the requester substantially prevailed “and the court finds that the agency had no reasonable basis for denying access.” Section 89(4)(d) discourages agencies from appealing a disclosure order: the appeal is given preference and is deemed abandoned if the agency fails to serve and file its record and brief within sixty days of the notice of appeal. And section 89(8) makes it a violation for any person, with intent to prevent public inspection, to willfully conceal or destroy a record.

The Committee on Open Government

Section 89(1) continues the Committee on Open Government, with the Secretary of State's office as its secretariat. Its duties are to furnish advisory guidelines and opinions to agencies and to any person, to promulgate the regulations on fees and the subject-matter list, to develop the online request form, and to report annually with recommendations to the Governor and the Legislature by December 15. It is advisory: nothing in section 89 gives it power to order disclosure. Its value to a records access officer is different. It holds a copy of every appeal and determination in the state, and its advisory opinions are the closest thing New York has to a running commentary on how each exemption and deadline has been read. A denial that tracks the Committee's reasoning is a denial the agency can explain in an Article 78 proceeding.

What a defensible FOIL operation looks like

Log receipt from every inbox and calendar the fifth business day before doing anything else with the request.
Template the three permitted responses so an acknowledgement cannot go out without an approximate date, set from the regulation 1401.5(d) factors and recorded.
Calendar the twentieth business day after each acknowledgement and send the reason-and-date-certain letter before it passes.
Cite a section 87(2) paragraph on every redaction as it is made, so the denial letter and the burden of proof are already written.
Write denials to regulation 1401.7(b): the reason, and the appeals officer by name, title, address, and phone — never the records access officer.
Charge only what section 87(1)(c) allows, give the two-hour estimate in advance, and be able to show the salary basis.
Run appeals on a ten-business-day clock, forward the appeal and determination to the Committee the day each arrives, and keep the subject-matter list, payroll record, and public notice current.

Where AccessPoint fits

FOIL's obligations are a sequence of dated letters, each of which must contain specific things and each of which, if missed, changes the request's legal status. AccessPoint runs that sequence inside your own Microsoft 365 and Azure tenant — requests and records never leave your environment — and the New York FOIL jurisdiction pack supplies the statute-specific configuration.

Five business days, counted from intake

The statutory clock starts when a request is activated, the received date follows your local calendar day rather than the server's, and the pack ships the New York public-holiday calendar with the five-business-day acknowledgement due-date rules. Overdue and due-this-week tiles keep the count visible, and notifications remind the records access officer before the day passes.

Constructive denial, recorded automatically

US packs ship a “Constructive denial” status that AccessPoint applies when a statutory due date passes without a response, writing the transition to the Activity feed. The pack also carries reasonable-time production dates and constructive-denial tracking for the twenty-business-day rule.

Letters that carry the statutory elements

Milestone-typed correspondence templates with merge fields hold FOIL's wording, so an acknowledgement is generated with its approximate date, a date-certain letter with its reason, and a denial with the appeals officer's details. Every letter sent or logged is filed against the request.

Section 87(2) on every redaction

The pack's section 87(2) exemption catalogue is colour-coded in the redaction viewer; each mark carries its exemption and alternates, the response package can include an exemption summary and a redaction index, and the closure check flags any redaction citing no exemption.

Fees within section 87(1)(c)

The Fee panel assesses, itemizes, waives, records payment against, and finalizes fees under the pack's twenty-five-cent-per-page and actual-reproduction-cost rules; the hours ledger separates fee-eligible time so the two-hour threshold and salary basis can be shown; and a fee-pending clock pause is available where payment is required in advance.

Appeals and Article 78 in one file

The Complaints & Appeals module tracks a FOIL appeal on its own statutory clock, linked to the request it contests, with a representations track, purpose-typed letters that stamp the clock, and named evidence sets that export Bates-stamped and hashed. The pack ships administrative-appeal grounds, Article 78 dispositions, and Committee on Open Government advisory-opinion references.

New York FOIL questions

How quickly must a New York agency respond to a FOIL request?

Within five business days of receiving a written request for a record reasonably described, Public Officers Law section 89(3)(a) requires the agency to do one of three things: make the record available, deny the request in writing, or furnish a written acknowledgement of receipt with a statement of the approximate date — “reasonable under the circumstances of the request” — when the request will be granted or denied. The Committee on Open Government's regulations add that the approximate date should not be more than twenty business days after the acknowledgement unless the agency explains why and gives a date certain.

What is FOIL's 20-business-day rule?

If an agency decides to grant a request in whole or in part but circumstances prevent disclosure within twenty business days from the date of its acknowledgement, section 89(3)(a) requires it to state in writing both the reason it cannot meet that window and “a date certain within a reasonable period” when the request will be granted. The twenty days run from the acknowledgement, not from receipt, and the date-certain letter is a separate obligation from the original acknowledgement.

What is a constructive denial under FOIL?

Section 89(4)(a) provides that an agency's failure to conform to the response requirements of subdivision 3 “shall constitute a denial.” The Committee on Open Government's regulation 1401.5(e) spells out seven ways to fail: no response within five business days, an acknowledgement with no approximate date, an unreasonable approximate date, no response within a reasonable time after the date given or within twenty business days of the acknowledgement, missing a promised twenty-day grant without a written reason and date certain, and giving an unreasonable date certain. A constructive denial can be appealed immediately, and a missed statutory time is one of the grounds on which a court may award attorney's fees.

How does a FOIL appeal work?

A person denied access may appeal in writing within thirty days to the head, chief executive, or governing body of the entity, or its designee. The appeals officer has ten business days from receipt to either provide access or fully explain in writing the reasons for further denial, and the agency must immediately forward a copy of the appeal and the ensuing determination to the Committee on Open Government (section 89(4)(a)). Under the regulations the records access officer cannot also be the appeals officer. A denial on appeal — or a failure to decide it in time — can be challenged in an Article 78 proceeding, where the agency bears the burden of proving the exemption.

What can a New York agency charge for FOIL copies?

Not more than twenty-five cents per photocopy for pages up to nine by fourteen inches, and the actual cost of reproduction for any other record (section 87(1)(b)(iii)). Under section 87(1)(c), actual cost may include only the hourly salary of the lowest-paid employee with the skill needed to prepare the copy, the cost of storage media, and the cost of an outside professional service where the agency's own IT equipment is inadequate — never search time or administrative costs, and no employee time at all unless at least two hours are needed. Regulation 1401.8 adds that there is no fee for inspection, search, review, or certification, that payment may be required in advance, and that fees may be waived.

Does the Committee on Open Government enforce FOIL?

No. Section 89(1) charges the Committee with furnishing advisory guidelines and opinions to agencies and to the public, promulgating regulations on fees and the subject-matter list, publishing a request form, and reporting annually to the Governor and Legislature by December 15. It receives copies of every appeal and appeal determination, but it has no power to order disclosure. Enforcement runs through the agency's own appeal step and then an Article 78 proceeding in the Supreme Court.

Sources

Public Officers Law § 89 — General provisions relating to access to records, New York State Senate (subdivisions 1, 2, 3, 4, and 8; accessed September 4, 2026)
Public Officers Law § 87 — Access to agency records (fees at subdivision 1(b)(iii) and 1(c); exemptions at subdivision 2; records to be maintained at subdivision 3; medium and encryption at subdivision 5; accessed September 4, 2026)
Public Officers Law § 86 — Definitions and § 84 — Legislative declaration (accessed September 4, 2026)
21 NYCRR Part 1401 — Public Access to Records of State and Local Agencies, Committee on Open Government, New York Department of State (regulations 1401.2, 1401.5, 1401.6, 1401.7, 1401.8, and 1401.9; accessed September 4, 2026)

Last reviewed: September 2026. This guide is general information for records practitioners, not legal advice — rely on the official text of Article 6 of the Public Officers Law, the Committee on Open Government's regulations, and your agency's counsel.