May 9, 2002
As you requested, I have reviewed the form that may be used to seek records from the Town of Cornwall under the Freedom of Information Law, as well as the instruction sheet for applicants for records.
In general, the form, in my opinion, is consistent with the Freedom of Information Law and the regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401). However, I would like to offer two minor suggestions.
In the instructions (and "instructions" is misspelled), it states that an applicant should "identify the specific records" sought. I note that the original version of the Freedom of Information Law required that an applicant seek "identifiable" records. That standard resulted in difficulties and frustration on the part of many, because they could not name or specify exactly which records they wanted to inspect or copy. Since 1978, §89(3) has stated that an applicant must merely "reasonably describe" the records. Therefore, the applicant is not required to specify with particularity the records of his or her interest; rather, he or she should provide sufficient detail to enable the records access officer and other agency staff to locate the records. In a related vein, in many instances, it is appropriate for you or staff to describe the manner in which records are kept (i.e., by address, in chronological order, etc.). By so doing, a request can be made in a manner consistent with an agency's filing or recordkeeping system.
An area of possible concern involves the appeal to the Town Board. Under §89(4)(a) of the Freedom of Information Law, a person denied access to records has the right to appeal to the Town Board as the governing body, or to a person or body designated by the Board to determine appeals. While the appeal to the Board is fully consistent with law, in similar situations, problems have occurred, because the Board must, by statute, determine the appeal within ten business days of its receipt. If it is not scheduled to have a meeting within that time, a special meeting would have to be called in accordance with both §62 of the Town Law and the Open Meetings Law in order to consider the appeal and render a determination. Often it has been difficult to convene a quorum or hold a meeting within ten business days, and consequently, it has been suggested that the governing body designate a person (i.e., the Supervisor, the Town Attorney, etc.) to determine appeals. By so doing, the necessity of holding a meeting is avoided.
Your interest in compliance with law is much appreciated, and I hope that I have been of assistance.
Robert J. Freeman