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FOIL-AO-13543

August 13, 2002

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter in which you asked, in essence, whether agency personnel must search for records sought under the Freedom of Information Law. From my perspective, based on the language of the law and its judicial interpretation, the answer is clearly in the affirmative when records can be found with reasonable effort.

In this regard, first, §89(3) of the statute refers specifically to the obligation to search for records. That provision deals in part with the situation where agency staff cannot locate a record, in which case, on request, an agency "shall certify that...such record cannot be found after diligent search." That phrase indicates that it is not the applicant who makes or who is responsible for making a search for records. On the contrary, agency staff is required to engage in the search.

Second, the same provision also states that an applicant must "reasonably describe" the records sought. In considering that standard, the Court of Appeals indicated that agencies are required to search for records. The case involved a request by an inmate for records pertaining to himself that were maintained by the Department of Correctional Services. Based on the request, Department staff located approximately 2,300 hundred pages of documentation and asked which among those documents the inmate wanted. He indicated that he wanted all of them, and the Department denied the request at that time based on its contention that the request failed to reasonably describe the records. The Court rejected that argument, stating 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'])" [Konigsberg v. Coughlin, 68 NY2d 245, 250 (1986)].

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.

Based on the foregoing, to extent that the records sought can be located with reasonable effort, I believe that a request would meet the requirement of reasonably describing the records. On the other hand, if the records are not maintained in a manner that permits their retrieval except by reviewing perhaps thousands of records individually in an effort to locate those falling within the scope of the request, to that extent, the request would not in my opinion meet the standard of reasonably describing the records

In Konigsberg, it is clear that the inmate did not search for the records; Department staff conducted the search. Further, the Court provided guidance and direction concerning the extent to which an agency is required to search its records in responding to a request made under the Freedom of Information Law. In a decision rendered by the Appellate Division, 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 "because such records do not exist in a 'central file' and, further...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 of FOIL by merely asserting that compliance could potentially require the review of hundreds of records" (id., 499).

As indicated in Konigsberg, only if it can be established that an agency maintains its records in a manner that renders its staff unable to locate and identify the records with reasonable effort would the request have failed to meet the standard of reasonably describing the records and would an agency not be required to engage in a search of its records.

In sum, as a general matter, searching for records is, based on the preceding commentary, an obligation imposed on agencies by the Freedom of Information Law.

 

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Roger A. Masse