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FOIL-AO-18938

August 10, 2012

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:

This is in response to your July 26, 2012 correspondence regarding responses to requests for records made pursuant to the Freedom of Information Law, and questions regarding any liability that may attach concerning responses that may be incomplete.

Please note that the Freedom of Information Law, which is distinct from discovery obligations imposed by the Civil Practice Law and Rules, requires that an agency make a reasonable effort to identify requested records.  This effort is based on a requirement that the records be “reasonably described” and that the agency conduct a “diligent search”.

In this regard, §89(3)(a) of the FOIL requires that an applicant must “reasonably describe” the records sought.  In considering that standard, the Court of Appeals has indicated that whether or the extent to which that condition is met may be dependent on the nature of an agency’s filing or recordkeeping system [see Konigsberg v. Coughlin, 68 NY2d 245 (1986)].  If, for example, invoices are kept or filed by means of the name of a vendor, and the request is made by naming the enterprise, it would likely be easy to locate the records at issue. If, however, invoices are kept chronologically, not by the name of a vendor, seeking the invoices by using the name of the vendor might involve the equivalent of searching for the needle in the haystack.  Likewise, if some records are maintained in a folder that is clearly marked, but others exist in folders that are not, the agency would be required to review the documents in the folder, but is not required to search the haystack, even though it is known that the needles are there, somewhere.

In keeping with this analysis, language contained further in the same paragraph, §89(3)(a), clarifies that the agency’s responsibility is to certify on request that it conducted a “diligent search” for records. Specifically, the statute provides that when an agency indicates that it does not maintain or cannot locate a record in response to a request, an agency “shall certify that it does not have possession of such record or that such record cannot be found after diligent search.”  There is no provision in the Freedom of Information Law that requires an agency to provide each and every record that is responsive to a request, but rather only those that the agency is able to locate with reasonable effort, as described above.

We hope that this is helpful.

Sincerely,

Camille S. Jobin-Davis
Assistant Director
CSJ:sb