December 20, 2001
FROM: Robert J. Freeman, Executive Director
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
As you are aware, I have received your letter in which you questioned the right to appeal under the Freedom of Information Law when an agency indicates that requested records are lost or missing or were destroyed.
To reiterate, in my view, an appeal may be made when an agency denies access by informing an applicant that it has a record, but the applicant does not have the right to inspect or copy that record based on one or more of the grounds for withholding the record appearing in §87(2) of the Freedom of Information Law. By means of example, if you requested your income tax records from this office, the response would be that this office does not maintain records of that nature. I do not believe that a response to that effect constitutes a denial of access to records, or that it would make legal or logical sense to appeal.
In your correspondence, I believe that the inference is that the Town should have certain records, and if it does, that it should have the ability to locate them. As suggested in my letter to you of November 1, you may seek a certification, which would be in the nature of an affidavit, in which it is asserted that, having made a diligent search, the Town officials could not locate the records or that the Town does not maintain the records.
It is possible that the your difficulty in obtaining records gives rise to other issues. One involves the obligation of an agency to search for its records. By way of historical background, when the Freedom of Information Law was initially enacted in 1974, it required that an applicant request "identifiable" records. Therefore, if an applicant could not name the record sought or "identify" it with particularity, that person could not meet the standard of requesting identifiable records. In an effort to enhance its purposes, when the Freedom of Information Law was revised, the standard for requesting records was altered. Since 1978, §89(3) has stated that an applicant must merely "reasonably describe" the records sought. I point out that it has been held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].
The Court in Konigsberg found that the agency could not reject the request due to its breadth and also stated that:
"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).
In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.
While I am unfamiliar with the record keeping systems of the Town, to the extent that the records sought can be located with reasonable effort, I believe that the request would have met the requirement of reasonably describing the records. In Ruberti, Girvin & Ferlazzo v. Division of State Police [218 AD2d 494, 641 NYS2d 411 (1996)], one element of the decision pertained to a request for a certain group of personnel records, and the agency argued that it was not required to search its files for those requested "because such records do not exist in a 'central file' and, further, that FOIL does not require that it review every litigation or personnel file in search of such information" (id., 415). Nevertheless, citing Konigsberg, the court determined that:
"Although the record before this court contains conflicting proof regarding the nature of the files actually maintained by respondent in this regard, an agency seeking to avoid disclosure cannot, as respondent essentially has done here, evade the broad disclosure provisions FOIL by merely asserting that compliance could potentially require the review of hundreds of records" (id.).
If the Town can locate the records sought with a reasonable effort analogous to that described above, i.e., even if a search involves the review of hundreds of records, it apparently would be obliged to do so. As indicated in Konigsberg, only if it can be established that the Department maintains its records in a manner that renders its staff unable to locate and identify the records would the request have failed to meet the standard of reasonably describing the records.
Also pertinent may be requirements imposed on the Town in relation to records management under Article 57-A of the Arts and Cultural Affairs Law, the "Local Government Records Law." For purposes of those provisions, §57.17(4) of the Arts and Cultural Affairs Law defines "record" to mean:
"...any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Record as used herein shall not be deemed to include library materials, extra copies of documents created only for convenience of reference, and stocks of publications."
Section 57.25 states in relevant part that:
"1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government's records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office...
2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments retention and disposal schedules establishing minimum retention periods..." (emphasis added).
In view of the foregoing, records must be retained, adequately protected and cannot be destroyed without the consent of the Commissioner of Education, and local officials cannot destroy or dispose of records until the minimum period for the retention of the records has been reached. The provisions relating to the retention and disposal of records are carried out by the State Archives, a unit of the State Education Department.
I hope that I have been of assistance.
cc: Town Board