December 27, 2001
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.
I have received your letter of December 5 and the correspondence attached to it. In brief, you have asked whether a request for records made under the Freedom of Information Law may be transmitted by use of a fax machine, rather than by mail.
In this regard, I know of no judicial decision dealing with the issue. However, §87(1) of the Freedom of Information Law requires that agencies promulgate rules and regulations to implement that statute in a manner consistent with the statute and the regulations issued by the Committee on Open Government (21 NYCRR Part 1401). Neither the statute nor the Committee's regulations refers specifically to requests made by fax. Consequently, the issue in my opinion is whether the policy of an agency is inconsistent with the Freedom of Information Law or the Committee's regulations or is otherwise unreasonable.
In general, it is my view that an agency must accept requests made via a fax machine, unless the use of the machine adversely impacts on the agency's capacity to carry out its duties. For example, if a law enforcement agency uses a fax machine to carry out essential law enforcement functions, interference with the use of the machine could hamper its ability to perform its duties effectively. In short, in a circumstance in which public use of a fax machine would interfere with an agency's functions, its use for making requests under the Freedom of Information Law might be restricted, so long as requests traditionally made are accepted, i.e., requests made in writing by mail or by personal delivery. In that event, such a policy would likely be valid, for it would not unreasonably inhibit the public's ability to seek records under the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman
cc: Colleen M. Fondulis