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FOIL-AO-15665

November 30, 2005

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

We are in receipt of your September 22, 2005 request for an advisory opinion concerning the application of the Freedom of Information Law to records you have requested from the Valley Stream Central High School District. Please note that while the Committee on Open Government is authorized to issue advisory opinions concerning the application of the Freedom of Information Law, this office has no authority to enforce the law or compel an entity to comply with the statutory provisions. As you may know, copies of previously issued opinions are available from our website.

In response to your many questions, we offer the following comments.

First, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."

It is noted that new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:

"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."

Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. Regardless of the date typed on the request, the agency is bound by law to respond within five date of receipt of a request. Accordingly, post-dating a request for records would have no effect on the agency’s responsibility to respond within five days of receipt of the request.

Second, you inquire as to how many times requested records may be inspected. While it has been held that an agency must permit an applicant to review records throughout its regular business hours [see Murtha v. Leonard, 210 AD 2d 441 (1994)], we know of no provision or decision that deals with the number of times that a record may be inspected or how long a request may be considered to be active. From our perspective, the principle of reasonableness should govern. If a request involves a great number of records, we do not believe that an agency can restrict inspection to a single day; rather, it should provide an opportunity to the applicant to review all of the records, perhaps on a piecemeal basis so as not to unduly interfere with the agency's ability to perform its duties. Similarly, we know of no limitation concerning the inspection of records. And, we do not believe that an agency must make the same records available over and over, if such disclosure would unnecessarily interfere with its capacity to carry out its duties.

Finally, we point out that the title of the Freedom of Information Law may be somewhat misleading, for it is not a vehicle that requires agencies to provide information per se; rather, it requires agencies to disclose records to the extent provided by law. As such, while agency officials may choose to answer questions or to provide information by responding to questions, those steps would represent actions beyond the scope of the requirements of the Freedom of Information Law. Moreover, the Freedom of Information Law pertains to existing records. Section 89(3) of that statute states in part that an agency need not create a record in response to a request.

From our perspective, a request for a law that may applicable might not be viewed as a request for a record, but rather an interpretation of law that requires a judgment. Depending on the nature of the matter, any number of provisions might be applicable, and a disclosure of some of them, based on one’s knowledge, may be incomplete due to an absence of expertise regarding the content and interpretation of each such law. Further, two people, even or perhaps especially two attorneys, might differ as to the applicability of a given provision of law. In contrast, if a request is made, for example, for "section 10 of the Education Law", no interpretation or judgment is necessary, for sections of the law appear numerically and can readily be identified. That kind of request, in our opinion, would involve a portion of a record that must be disclosed. Again, a request for laws that might be applicable is not, in our view, a request for a record as envisioned by the Freedom of Information Law.

We hope this helps clarify your understanding of the Freedom of Information Law.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

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