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PAC Opinion Highlights Importance of Responding to FOIA Requests to Preserve Municipal Rights

Author: Ruth A. Schlossberg, Matt Marcellis

April 29, 2019

In February, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-003. Like many PAC opinions, this one addressed a situation in which a public body — in this case, the Village of Ringwood — failed to respond at all to a FOIA request. Unsurprisingly, the opinion held that the Village had a duty to respond to the FOIA request.

The more important take-away from this PAC opinion, however, is the reminder that because the Village public body had failed to reply in a timely manner under Section 3(d) of FOIA, the Village would be prohibited both from imposing a fee for copies and from treating a request as unduly burdensome when it did ultimately reply (as it was ordered to do). This is a useful reminder to public bodies of the importance of timely compliance and communication with FOIA requesters.

At the same time, however, it is important to note that even in the event a public body is ultimately ordered to comply with an FOIA request following a previous failure to comply, apart from these 3(d) exceptions related to fees and “unduly burdensome” exceptions, public bodies are still allowed to assert any of the otherwise authorized exemptions under FOIA. They are not required to produce information that would have been exempt if produced in a timely manner. The PAC implicitly acknowledges this fact in a footnote in which it mentions that some of the items that might have been responsive to the request might have been exempt under FOIA, but the PAC could not make that determination because the Village had not responded to the PAC’s correspondence.